[Congressional Record: July 9, 2008 (Senate)]
[Page S6452]
FISA AMENDMENTS
Mr. McCONNELL. Mr. President, the one point that I would like to make
before we vote later this morning on the various amendments to the
Foreign Intelligence Surveillance Act--a law that is aimed at helping
us stop terrorists before they can hurt us--is the most important point
of all. It also happens to be a fairly straightforward one: adopting
any one of these three amendments would kill the underlying bill.
It would risk putting us right back where we were last July, with the
August recess approaching, and the authorizations for monitoring
foreign terrorist targets set to expire. In that case, if a member of
al-Qaida were to call, our ability to monitor his communications would
be seriously handicapped, and it may even be impossible for us to do
so, at least on a real-time basis.
So the question before the Senate is really quite simple: we either
pass this delicately balanced bipartisan bill which gives our
intelligence officials the tools they need to find foreign terrorists
overseas--which is itself a compromise on the bill the Senate already
passed this year by a vote of 68-29, and which will garner a
Presidential signature--or we scrap it altogether and end up right back
where we were a year ago.
That is our choice. Fix the problem now--finally--or allow the
problem that intelligence officials alerted us to more than a year ago
continue indefinitely, regardless of the threat.
Just yesterday the White House reiterated its intention to veto any
FISA bill that is amended to strip or weaken liability protection for
the telecommunication companies that may have helped the Government in
the wake of the September 11 attacks.
This means that the adoption of any one of these amendments will take
down the entire bill, unraveling more than a year of delicate
bipartisan negotiations.
We're not doing these companies any special favors. The U.S.
Government wouldn't even have a foreign surveillance program without
them. The intelligence community relies on their cooperation to do its
job. And any law that makes it less likely that these companies
cooperate with us in the future is a law that makes it harder to
protect Americans from terrorist attacks.
That is not just my view or the view of Senator Bond on the
Republican side. Let me remind my colleagues of what the chairman of
the Intelligence Committee told us, quite bluntly, about our
responsibilities in this area on the floor of the Senate last February.
This is what Senator Rockefeller said:
What people have to understand around here, he said, is
that the quality of the intelligence we are going to be
receiving is going to be degraded. It is going to be
degraded. It is already going to be degraded as
telecommunications companies lose interest. Everybody tosses
that around and says: Well, what do you mean? I say: Well,
what are they making out of this? What is the big payoff for
the telephone companies? Do they get paid a lot of money? No.
They get paid nothing. What do they get for this? They get
$40 billion worth of suits, grief, trashing, but they do it.
But they don't have to do it, because they do have
shareholders to respond to, to answer to.
There is going to be a degrading of intelligence in some
very crucial areas, because we will go right back to where we
were last August, and that will be a further jolt to the
telecommunications companies, because they will understand
that you cannot count on the Congress, you cannot count on us
to make policy which will give [them] stability.
Those are the words of the Democratic chairman of the Intelligence
Committee. And I would only add to them that it is our job to make
policy in this area. The Senate--and especially its Intelligence
Committee--has been examining this issue for over a year. The committee
of jurisdiction conducted extensive oversight and concluded that the
telecommunications companies acted in good faith in answering the
administration's call to help protect the country from terrorist
attack.
The Intelligence Committee then passed an overwhelmingly bipartisan
bill, 13-2, that protected these companies from potentially crippling
lawsuits, which would terminate the program. The full Senate made the
same policy judgment, defeating the Feingold-Dodd amendment to strike
immunity 67-31, as well as the Specter-Whitehouse substitution
amendment 68-30, on its way to passing the bill by a lopsided vote of
68-29.
Further modifications were made to the bill in negotiations with the
House, including to the liability provisions. The House leadership--
which had been holding up enactment of a FISA modernization law because
of the liability question--then voted for this compromise bill, and the
compromise cleared the House with almost 300 votes.
Now, after all this legislative time and effort and contemplation,
the Bingaman amendment would have us say, ``Just kidding.'' This
amendment would punt our oversight and legislative responsibilities
over to inspectors general in the executive branch so they can look at
the same program that the Intelligence Committee and the Congress have
been considering for over a year.
It is ironic that those who are concerned about preserving
congressional prerogatives and congressional responsibilities,
especially in relation to the executive branch, would have us rely on
the judgment of employees of the executive branch before we can make
policy, especially after all the work that Congress has done on this
subject. We should not kick the can down the road for another 15 months
and in the process abdicate our role in this area.
An acceptable bipartisan solution to our intelligence problem has
already been reached. That solution has been endorsed by majorities in
both houses of Congress. If that solution is compromised by adopting
any of these amendments, this bill would not become law, current
targeting orders would expire, and the Senate would fail today to do
its basic duty of protecting Americans to the fullest extent possible
from terrorist attack.
Americans have a right to expect Congress to give our intelligence
officials what they need to do their jobs. And the only way we fulfill
that trust is by voting against each of these amendments to the FISA
modernization bill.
Mr. President, before turning to another subject, I wish to
particularly commend the Senator from Missouri, Mr. Bond, who has done
an incredibly effective job at trying to traverse the various currents
that have surrounded this extraordinarily difficult piece of
legislation.
First he established a very good working relationship with Senator
Rockefeller, the chairman of the Intelligence Committee. He was an
integral part of negotiating and, as I say, kind of dealing with the
currents that were going on through the last year.
I just wish to say through the Chair to him how much America owes the
Senator from Missouri for his extraordinary work on this subject.
America will be safer in the future as a result of the work of the
Senator from Missouri. We here in the Senate are deeply grateful for
his extraordinary job, and the people of Missouri have every right to
be very proud of him.
Mr. BOND. I thank the Senator.
____________________
[Congressional Record: July 9, 2008 (Senate)]
[Page S6453-S6454]
FISA
Mr. REID. Mr. President, I wanted to build upon the remarks of the
Senator from Kentucky. He commended and applauded Senator Bond, and
that certainly is appropriate. But I also want to recognize, as the
Republican leader did, the work they have done together. I may disagree
with the result of what we have on the floor today, and the outcome of
what is going to happen today, but I want everyone to know that Senator
Rockefeller is a man who works hard. There is no Senator who works any
harder than Jay Rockefeller. He spends, with his counterpart and
counterparts, Members of the Intelligence Committee, days, days each
week in a place that is secure, away from the press, staff, and the
rest of the Senate, in trying to figure out what is going on in the
world as it relates to bad people trying to do bad things.
They also have to keep on top of what is going on around the world as
the administration advises them. So when the history books are written
about this institution, one of the people they will have to write about
is the good man of West Virginia, a man of wealth who decided to be a
public servant. He has done that for the people of West Virginia for
decades. There are a lot of great Senators who have come from the State
of West Virginia, and two of them are serving now, but I
[[Page S6454]]
want everyone to know that my appreciation, my affection, and my total
admiration for Jay Rockefeller is like no other Senator. He is a
wonderful human being. I so appreciate his willingness to do this job.
Not everyone runs and tries to get to be chairman of the Intelligence
Committee, but he does it because he thinks it is the right thing to do
for the country. We in the Democratic caucus think there is no one
better to lead us in that behalf.
I will simply say that the relationships with Senator Bond and
Senator Rockefeller have been extremely pleasant, and that makes this
most difficult job better for all of us.
____________________
[Congressional Record: July 9, 2008 (Senate)]
[Page S6454-S6470]
FISA AMENDMENTS ACT OF 2008
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 6304, which the clerk will
report.
The legislative clerk read as follows:
A bill (H.R. 6304) to amend the Foreign Intelligence
Surveillance Act of 1978 to establish procedures for
authorizing certain acquisitions of foreign intelligence, and
for other purposes.
Pending:
Bingaman amendment No. 5066, to stay pending cases against
certain telecommunications companies and provide that such
companies may not seek retroactive immunity until 90 days
after the date the final report of the inspectors general on
the President's surveillance program is submitted to
Congress.
Specter amendment No. 5059, to limit retroactive immunity
for providing assistance to the United States to instances in
which a Federal court determines the assistance was provided
in connection with an intelligence activity that was
constitutional.
Dodd amendment No. 5064, to strike title II.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I ask unanimous consent to speak on my time,
followed immediately by Senator Hatch, who will speak for 10 minutes,
and that my remaining time be reserved after that.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. REID. What was the request?
Mr. BOND. The request was that I speak on my time and that Senator
Hatch be given 10 minutes.
Mr. REID. Mr. President, is that additional time to what we have?
Mr. BOND. No. That is off of my time.
Mr. REID. I appreciate that. But should we not be going back and
forth? Because Senator Feingold has been here waiting.
Mr. BOND. How long will Senator Feingold speak?
Mr. REID. My understanding is 30 minutes.
Mr. BOND. Responding to the distinguished leader, Senator Hatch had
to leave a Judiciary Committee hearing. He was only going to speak 10
minutes. And I am going to be about 10 minutes.
Mr. FEINGOLD. As long as my 30 minutes is blocked.
The ACTING PRESIDENT pro tempore. The Senator's time is locked in
under the unanimous consent.
Is there objection to the sequence of speakers?
Mr. FEINGOLD. As long as my 30 minutes is reserved so I can speak
following the time of the Senator from Utah.
The ACTING PRESIDENT pro tempore. Is there objection to the request
as modified?
Without objection, it is so ordered.
The Senator from Missouri.
Mr. BOND. Mr. President, I thank the distinguished leader who has
done a remarkable job of helping us to get to this point in what has
been, let us say, a challenging 15-month debate. And I concur with him
in the very kind and generous words he said about my friend and
colleague, the chairman of the committee, Senator Rockefeller.
I expressed my appreciation to the Republican leader for his very
kind words, and I agree with him that it is absolutely essential that
we defeat these amendments today. But, finally, after sporadic
filibuster attempts over a period of 15 months by several Members,
Members whom I respect for their tenacity and conviction in this
matter, we are poised today to conclude work on the FISA Amendments Act
of 2008.
Yesterday I detailed my views on aspects of this legislation, and I
walked through six tweaks to the legislation that were made to the
bipartisan Senate bill that the Senate passed in February, earlier this
year, that have resulted in the bill before us today.
I am happy that the tweaks to the bill did not change the bill much.
I am proud to negotiate with the House to bring back to the Senate
essentially the same bipartisan bill today that both the chairman and I
crafted with the help of an overwhelming bipartisan majority of our
Intelligence Committee.
This ensured that today we have a major bipartisan victory of which
all sides can be proud, exemplifying what can be accomplished in
Washington when there is bipartisan negotiation.
I thank all of those who worked so hard to bring us to the cusp of
sending this legislation to the President. I appreciate the hard work
of House Majority Leader Steny Hoyer, who was critical in the House;
Republican Whip Roy Blunt, and Congressmen Pete Hoekstra and Lamar
Smith, as well as the efforts of my colleagues in the Senate, Senators
Orrin Hatch, Saxby Chambliss, Senate Republican Leader Mitch McConnell,
and Chairman Rockefeller for his strong support and leadership.
Further, we could not be here today without the hard work of staff,
from the House, Jen Stewart from House Minority Leader Boehner's
office; Brian Diffel from House Minority Whip Blunt's office; Chris
Donesa from Mr. Hoekstra's office; Caroline Lynch from Mr. Smith's
office; Mariah Sixkiller with the House Majority Leader's office; and
Jeremy Bash from Mr. Reyes' office, along with an assortment and large
number of deputies and others who assisted them in producing the
language that their Members would support.
As to my own staff, I thank my staff director Louis Tucker and
staffer Jacqui Russell from the Intelligence Committee; a very special
thanks to two FISA counsels, Jack Livingston and Kathleen Rice, who
brought invaluable expertise into this process as lawyers who
participated in the FISA process from the executive branch perspective
while working in the FBI.
Thanks to Senator Rockefeller's counsels, Mike Davidson, Christine
Healey, and Alissa Starzak, as well as to Jesse Baker with Senator
Hatch; to Tom Hawkins and John Abegg with Leader McConnell's office;
and to the many other staff who helped make this happen, too many to
name now in the short time we have before we vote on the upcoming
amendments.
I believe it is necessary to reinforce a few points that Senator
Rockefeller and I made yesterday in urging our colleagues to defeat the
three amendments before us that would kill this bill by altering the
title II liability protections, and potentially putting us in the
disastrous situation we faced a year ago.
First, yesterday we heard from supporters of these amendments that
decimating the title II civil liability protections for our
telecommunications providers would have no effect on the title I
portion of the bill that modernizes FISA collection methodologies
because title I contains directives that are enforceable by court
order.
Such statements demonstrate a lack of understanding about the
intelligence community's dependence upon our third-party partners. We
know from our experience when the Protect America Act expired in
February that is simply not the case. We lost days' worth of
intelligence while the partners ceased cooperating momentarily until
they were assured that authorizations and corresponding immunity tie
would last until August. If we do not have their voluntary cooperation
by giving them liability protection, then it is much harder and we get
much less in trying to compel them.
Second, we heard yesterday that it is ``bad lawyering'' to apply the
substantial evidence standard to the title II liability. The Senate's
bill had an abuse of discretion standard for title II liability, which
I believe was the appropriate standard, but House Democrats offered
this other standard.
It is an appellate standard, not a factual standard, as my colleague
from
[[Page S6455]]
Rhode Island asserted yesterday. The court will not be holding a trial
or hearing from witnesses. There is no adversarial process in the true
sense of the word. These steps and safeguards are necessary to ensure
that our intelligence sources and methods remain protected.
Third, while my colleague from Rhode Island asserted that the TSP is
a cause for deep anger at the administration, I submit that deep anger
should be redirected away from tearing down experienced, dedicated
American officials and toward tearing down our foreign enemies who are
intent on destroying our Nation and our way of life.
The TSP enabled our intelligence community to prevent further attacks
on our homeland, and I and the leaders of the intelligence community
believe it is the key reason why we have not been attacked for nearly 7
years since September 11.
Despite what some far-left editorial writers say, the TSP only
allowed warrantless interception of phone calls from terrorists
reasonably believed to be overseas.
Intercepts of Americans and other U.S. persons in the United States
required a warrant from the FISA Court.
To suggest yesterday, as was suggested on the floor, that it enabled
collection of communications among innocent American citizens is flat
wrong. The bill before us will keep us safe and protect civil
liberties. So it should not be a moment of anger but, rather, one of
bipartisanship and pride that we worked together to produce the best
legislation possible to keep America safe and to protect her rights
further.
Others assert that leaking the program was good. Well, I dispute
that. The intelligence agencies noticed a significant drop in
collection when the terrorists found out we could listen in on them.
The CIA Director, at his confirmation hearing, when I asked him how
badly the intelligence community had been hurt, said: We are applying
the Darwinian theory to terrorists; we are only intercepting the dumb
ones.
Both Democratic and Republican leaders were read in on this program
early on, the Big Eight, and had the opportunity through congressional
options to delay or scrutinize the program, if necessary.
I understand they advised the administration it would take too long
to go through the legislative process to modernize FISA. From what I
have seen over the past 15 months in how long it has taken us to get
here today, that seems to have been very good advice.
My colleague from Pennsylvania asserted earlier that only 30 Senators
have been read in. But the chairman did a little quick math and said 37
have been read in. It is unusual to have more than one-third of the
Senate briefed on some of our most sensitive intelligence collection
strategy.
Oversight of these areas is why the Senate created the Senate Select
Committee on Intelligence. We on the committee oversee hundreds of
programs that the rest of our colleagues know little about. And even
though we invite them over for briefings, they usually have too many
other responsibilities to have time to accept our invitation.
Finally, my colleague from Pennsylvania asserted we do not know what
we are granting immunity for, and only courts can decide that matter.
That is simply not true. The committee's bipartisan review makes it
clear to whom retroactive civil liability protection is being granted.
And the courts are not the appropriate standard to make those
judgments.
The Senator's statements clearly indicated that he wants to challenge
the Government, the President's use of the TSP. Well, we do not block
suits against the Government, against Government employees or
officials. It would be unfair and potentially disastrous to use the
patriotic electronic carriers as punching bags to try to get at the
administration. That will destroy our intelligence community's ability
to collect with their assistance, and it would potentially lead to a
serious gap in the program. It would put the people of the collecting
agencies at great risk, civilians who do not go into battle with
protection, with gear and with training.
That is an absolutely outrageous assertion that they should be
willing to undergo the hazards of war in matters of national security.
It is appropriate and imperative that the oversight committees act as
they have in reporting such legislation to the entire body.
My friend repeatedly inquired if Congress had ever done anything such
as this before. But, in fact, we only need to look back to 2005 when
Congress passed the Protection of Lawful Commerce in Arms Act. It
essentially granted immunity to gun manufacturers, distributors,
dealers, and others against lawsuits seeking money damages and other
relief for harm caused by misuse of firearms.
It still allowed those defendants to be sued for their own
negligence, violation of sale and marketing statute, breach of contract
or warranty, design defect, et cetera. The immunity provision was held
to be constitutional, not a violation of due process, equal protection,
or takings, in Ileto v. Glock, a 2006 California court case. So beyond
the rhetoric in opposition to the legislation before us, I believe
Senators need to take a fair look at what is before us today.
I strongly encourage my colleagues to vote down the three amendments
before us and to support this bill. This bill gives our intelligence
operators and law enforcement officials the tools they need to conduct
surveillance on foreign terrorists in foreign countries planning to
conduct attacks inside the United States against our troops and allies.
It is the balance we need to protect our civil liberties without
handcuffing intelligence professionals. Let's do the right thing, pass
this bill without amendments.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Mr. President, it was Kierkegaard, a number of years ago,
who said that venture causes anxiety, but not to venture is to lose
one's self.
From the outset let me be crystal clear in voicing my strong
opposition to all three pending amendments to H.R. 6304. But before I
discuss these amendments, let me address a few things said on this
floor yesterday. One of my colleagues said the Congress shouldn't ``jam
this bill through.'' If working on a bill for over 440 days is jamming
it through, then Webster's dictionary should prepare a new definition
for the word. We also heard comments yesterday which were critical of
the fact that not every Senator has been fully briefed on the
activities of the intelligence community. I guess since this same
argument didn't stick the first time it was offered back in December,
more desperate attempts would be made. If at first you don't succeed,
try, try again.
Memories are short around here, and we should appreciate that the
very creation of the Intelligence Committee was controversial. The
committee was created so a limited number of Members would have
oversight of our intelligence agencies. During the 10 days of debate on
the resolution creating this committee, numerous Senators openly
worried about possible leaks in providing highly classified material to
a large number of individuals. Here is what Senator Milton Young said
in May of 1976:
It is my understanding that on this new committee, staff
would have access to the most sensitive information. Human
nature is such that when too many people have access to this
information, someone is bound to leak parts of it to an
ambitious and inquisitive press.
Also, in 1976, here is what another Senator said. This is Senator
Walter Mondale on the need for a Senate Intelligence Committee on May
13, 1976:
We have the worst possible system for congressional
oversight of intelligence. Responsibility and authority are
fragmented in several cases; it is impossible to look at
intelligence as a whole; because authority and responsibility
are not welded together, we are incapable of dealing with
problems privately, and there is the inevitable temptation to
deal with them through leaks.
Thirty two years later, these statements contain points that are
still vitally important to this discussion. Is this the system of
oversight that we should go back to? Those that argue that we should
not vote until every Member gets some sort of vague access are
essentially saying that all 535 Members of Congress, plus hundreds of
cleared staff, should be read into all highly classified programs whose
jurisdiction is otherwise limited to the Intelligence Committees. If
you want to guarantee future leaks, this would be a good approach.
[[Page S6456]]
This sort of logic begs the question: Why do we have the Intelligence
Committee? The answer is obvious, and I urge my colleagues to remember
the extensive efforts of our predecessors which created a committee
with the authority to review these materials.
While the issue of civil liability protection for telecoms has been
debated extensively over the last 9 months, the three final amendments
before us all attempt to alter or remove the carefully crafted
bipartisan civil liability provision. I agree with the comments from
both sides of the aisle in opposition to these amendments.
The Bingaman amendment, for example, would needlessly delay the
liability provision. I believe the amendment is unwise, as its purpose
disregards the extensive work that Congress has already conducted on
this issue. By my last count, Congress has conducted over 27 hearings
on the TSP and FISA over the last few years.
Let there be no doubt; the IG review will not, and cannot, determine
the legality of the terrorist surveillance program. Any suggestion that
the review will do so is absolutely incorrect. Inspectors general are
not qualified and lack jurisdiction to review the legality of
intelligence programs. As further evidence of this obvious point, let's
look at this quote by the DOJ inspector general on conducting legal
analysis:
That's not our role as the Inspector General.
In addition, the IG review will not publicly reveal which companies
elected to participate in this program, as that information remains
highly classified. Simply put, attempts to alter the FISA compromise
based on a misperception of the eventual IG review should be strongly
rejected, and we should do so this morning.
Close inspection of the lawsuits against the telecoms reveals quite
dubious claims. As has previously been stated, the plaintiffs
persistently confuse speculative allegations and untested assertions
for established facts.
It is very simple, Congress should not condone oversight through
litigation.
The lawsuits seize on the President's brief comments about the
existence of a limited program to go on a fishing expedition of NSA
activities. But this is really worse than a fishing expedition; this is
draining the Loch Ness to find a monster. Sometimes what you are
looking for just doesn't exist.
Yet we consistently hear as justification for the apparent paranoia
that some wiretaps were warrantless. But lest we forget, the fourth
amendment does not proscribe warrantless searches, it proscribes
unreasonable searches.
Here's a quick example from a few blocks from here: Waiting for
warrantless searches at the National Archives; waiting to be served
before viewing the fourth amendment itself. That is a warrantless
search.
The fact is that the President created an early warning system to
prevent future attacks; essentially a terrorist smoke detector. But
rather than appreciate the protection it offered, critics rushed to
pull out the batteries so that it could not work.
My feelings of admiration and respect for the companies who did their
part to defend America are well known. As I have said in the past, any
company who assisted us following the attacks of 9/11 deserves a round
of applause and a helping hand, not a slap in the face and a kick to
the gut.
When companies are asked to assist the intelligence community based
on a program authorized by the President himself and based on
assurances from the highest levels of government that the program has
been determined to be lawful, they should be able to rely on those
representations.
In the over 40 outstanding civil lawsuits, is there any proof that
any litigant was specifically targeted by the government? Can any of
the plaintiffs show that they are ``aggrieved persons'' under the
definition of FISA? The answer to both questions is no. Rather, many of
the lawsuits utilize the following logic: I have long distance service,
so I am going to sue because I think you listened to my calls. Even
though they have no proof; even though the government has more
important things to do than listen to their random phone calls, they
push on in their desire to justify their view of self-importance and
irrational belief in government conspiracy. I don't want to bruise
anyone's ego, but if al-Qaida is not on your speed dial the government
is probably not interested in you.
The possible disclosure of classified materials from ongoing court
proceedings is a grave threat to national security, and the very point
of these lawsuits is to prove plaintiffs' claims by disclosing such
classified information. Simply put, you do not tell your enemies how
you track them. This is why the NSA and other government agencies will
not say what they do, how they do it, or who they watch. Nor should
they. To confirm or deny any of these activities, which are at the
heart of the civil lawsuits, would harm national security. We should
not discuss what our capabilities are.
If the identities of the companies are revealed and officially
confirmed through litigation, they will face irreversible harm; harm in
their business relations with foreign governments and companies, and
possible physical harm to their employees both here and abroad, who are
truly soft targets for attackers.
I have come to this floor on numerous occasions during the last year
to discuss the issue of FISA modernization and am hopeful that the need
to continue to do so will finally end tomorrow. I am confident that
when the Congress considers this issue, we will finally send this
vitally important legislation to the President to be signed into law.
I compliment the distinguished chairman and vice chairman of the
committee, Senators Rockefeller and Bond. They have had to handle this
matter through all kinds of vicissitudes and false logic. They have
done an exceptionally good job. They and their staff have stood and
tried to let America know what is involved.
The fact is, these two leaders have done a great job on this
committee. They have previously passed bipartisan legislation
overwhelmingly. This original Senate FISA modernization bill would have
passed the House pretty much overwhelmingly, had it been brought up,
and, of course, hopefully this version will be passed today without any
of these three amendments which would cause a veto.
I thank those who vote for this bill and those who have been
considerate enough to look at all the important arguments and support
this legislation which is much needed, certainly much needed before
August and should have been passed a long time ago.
I thank all those who have stood up on this bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that Senator
Leahy be recognized following my remarks, to be followed by Senator
Specter for 10 minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, I yield myself such time as I may
consume. Before I get into my formal remarks, let me react a bit to the
remarks of the Senator from Utah. He is a great colleague, a very
cordial man. I have enjoyed the 16 years I have served with him,
especially on the Judiciary Committee. But I will use an unsenatorial
word for one of the arguments he made. The word is ``wow.'' The notion
that roughly 70 Senators would not be briefed on something we are
voting on and the notion that the briefing of the Intelligence
Committee, which, of course, I am a member of and which I support, is a
justification for having 70 Senators not knowing what they are voting
on is a very bizarre interpretation of why the Intelligence Committee
was created. It was not created as a replacement for the Senate when it
comes to voting on the laws governing the fundamental rights of the
American people. If that is the best they can come up with, when 70
Senators don't even know the fundamentals of the program that this
immunity issue is addressing, it is incredible. Let me get into the
merits, but first I should also address that we have apparently been
lumped in as part of the black helicopter crowd. I assure you the
coalition in this country that has concerns about this bill is much
broader than any such characterization.
A number of Senators came to the floor prior to the Fourth of July
recess to debate the FISA legislation, and more debate has occurred
this week.
[[Page S6457]]
We heard arguments for and against this legislation, and Senators have
cited a variety of reasons for their positions.
Several have defended the bill by arguing the legislation includes
improvements compared to the Senate bill we passed earlier this year.
Of course, I was not surprised to hear that line of argument. I agree,
there are some improvements to the Senate bill contained in the
legislation we are now considering. But Mr. President, those changes,
as you well know, are not nearly enough to justify supporting the bill,
as I will explain in a few moments.
I was, however, surprised to hear several Senators still defending
the legality of the President's warrantless wiretapping program and
still arguing that Congress had somehow signed off on this program
years ago because the so-called Gang of 8 group was notified.
I thought we were well past these arguments. Two and a half years
after this illegal program became public, I cannot believe we are still
debating the legality of this program on the Senate floor and that
anyone--anyone--seriously believes that merely notifying the Gang of
8--eight Senators and Congressmen--while keeping the full Intelligence
Committees in the dark, somehow represents congressional approval.
It could not be clearer that this program broke the law and that this
President--this President--broke the law. Not only that, but this
administration affirmatively misled the Congress and the American
people about it for years before it finally became public. So if we are
going to go back and discuss these issues that I thought had long since
been put to rest, let's take a few minutes to cover the full history.
Here is the part of this story that somehow seems to have been
forgotten. In January 2005, 11 months before the New York Times broke
the story of the illegal wiretapping program, I asked then-White House
Counsel Alberto Gonzales at his confirmation hearing to be Attorney
General whether the President had the power to authorize warrantless
wiretaps in violation of the criminal law. Neither I nor the vast
majority of my colleagues knew it then, but the President had
authorized the NSA program 3 years before, and Mr. Gonzales was
directly involved in that issue as White House Counsel.
At his confirmation hearing, he first tried to dismiss my question--
if you can believe it--as ``hypothetical,'' though he knew exactly what
was going on. He then testified:
[I]t's not the policy or the agenda of this President to
authorize actions that would be in contravention of our
criminal statutes.
The President's wiretapping program was in direct contravention of
our criminal statutes. Mr. Gonzales knew that, but he wanted the Senate
and the American people to think the President had not acted on the
extreme legal theory that the President has the power as Commander in
Chief to disobey the criminal laws of this country.
The President, too, misled the Congress and the American public. In
2004 and 2005, when Congress was considering the reauthorization of the
USA PATRIOT Act, the President went out of his way--I remember this
very clearly--to assure us that his administration was getting court
orders for wiretaps, all the while knowing full well that his
warrantless wiretapping program was ongoing.
Here is what the President said on April 20, 2004:
Now, by the way, any time you hear the United States
government talking about [a] wiretap, it requires--a wiretap
requires a court order. Nothing has changed, by the way. When
we're talking about chasing down terrorists, we're talking
about getting a court order before we do so.
Those are the words of the President of the United States to the
American people.
Again, on July 14, 2004:
The government can't move on wiretaps or roving wiretaps
without getting a court order.
And listen to what the President said on June 9, 2005:
Law enforcement officers need a federal judge's permission
to wiretap a foreign terrorist's phone, a federal judge's
permission to track his calls, or a federal judge's
permission to search his property. Officers must meet strict
standards to use any of these tools. And these standards are
fully consistent with the Constitution of the U.S.
So please, let's not pretend that the highly classified notification
to the Gang of 8, delivered while the President himself was repeatedly
presenting a completely different picture to the public, suggests that
Congress somehow acquiesced to this program. As the Members of this
body well know, several Members of the Gang of 8 at the time raised
concerns when they were told about this, and several have since said
they were not told the full story. And, of course, all of them--all of
them--were instructed not to share what they had learned with a single
other person.
I also cannot leave unanswered the arguments mounted in defense of
the legality of the NSA program. I will not spend much time on the
argument that the authorization for use of military force that Congress
passed on September 18, 2001, authorized this program. That argument
has been thoroughly discredited. In the AUMF, Congress authorized the
President to use military force against those who attacked us on 9/11,
a necessary and justified response to the attacks. We did not authorize
the President to wiretap American citizens on American soil without
going through the judicial process that was set up nearly three decades
ago precisely to facilitate the domestic surveillance of spies and
terrorists.
Senators have also dragged out the same old, tired arguments about
the President's supposed inherent Executive authority to violate the
FISA statute. They argue that a law passed by Congress cannot trump the
President's power under the Constitution. Now, that argument may sound
good, but it assumes what it is trying to prove--that the Constitution
gives the President the power to authorize warrantless wiretaps in
certain cases. You cannot simply say that any claim of Executive power
prevails over a statute--at least, not if you are serious about the
rule of law and about how to interpret the Constitution.
The real question is, when a claim of Executive power and a statute
arguably conflict, how do you resolve that conflict?
Fortunately, this is not something the Supreme Court has been silent
about. The Supreme Court has told us how to answer that question. We
are talking about the President acting in direct violation of a
criminal statute. That means his power was, as Justice Jackson said in
his famous and influential concurrence in the Steel Seizure cases half
a century ago, ``at its lowest ebb.'' The Presidential power, Justice
Jackson said, in that circumstance was ``at its lowest ebb.'' In other
words, when a President argues that he has the power to violate a
specific law, he is on shaky ground.
That is, obviously, not just my opinion. It is what the Supreme Court
has made clear. No less an authority than the current Chief Justice of
the United States, John Roberts, repeatedly recognized in his
confirmation hearings--over and over again--that Justice Jackson's
three-part test is the appropriate framework for analyzing questions of
Executive power.
In early 2006, a distinguished group of law professors and former
executive branch officials wrote a letter pointing out that ``every
time''--every time--``the Supreme Court has confronted a statute
limiting the Commander-in-Chief's authority, it has upheld the
statute.'' It has upheld the act of Congress over the claims of
Executive power that overreach and conflict with the power of this
Congress to make the laws in this country.
The Senate reports issued when FISA was enacted confirm the
understanding that FISA overrode any preexisting inherent authority of
the President. The 1978 Senate Judiciary Committee report stated that
FISA ``recognizes no inherent power of the President in this area'' and
``Congress has declared that this statute, not any claimed Presidential
power, controls.''
Contrary to what has been said on this floor, no court has ever
approved warrantless surveillance in violation of FISA based on some
theory of article II authority. The Truong case that is so often hauled
out to make this argument was a Vietnam-era case based on surveillance
that occurred before FISA was enacted, so it could not have decided
this issue. And the issue before the FISA Court of Review in 2002 had
nothing to do with inherent Presidential authorities. Yet these cases
are repeatedly cited by supporters of the President, complete with
large charts
[[Page S6458]]
of the supposedly relevant quotations. But the fact is, not a single
court--not the Supreme Court or any other court--has considered
whether, after FISA was enacted, the President nonetheless somehow has
the authority to bypass it and authorize warrantless wiretaps.
In fact, as the Senator from Pennsylvania and I discussed on the
Senate floor yesterday, just last week a Federal district court
strongly indicated that were it to reach that issue, it would find that
the President must in fact follow FISA. The court was considering
whether the state secrets privilege applies to claims brought under the
FISA civil liability provisions, and it found that it does not. Its
reasoning was based on the conclusion, again, that Congress had spoken
clearly that it intended FISA and the criminal wiretap laws to be the
exclusive means--the exclusive means--by which electronic surveillance
is conducted, and it fully occupied the field in this area, replacing
any otherwise applicable common law.
Now, here is what the court said:
Congress appears clearly to have intended to--and did--
establish the exclusive means for foreign intelligence
surveillance activities to be conducted. Whatever power the
Executive may otherwise have had in this regard, FISA limits
the power of the executive branch to conduct such activities
. . .
And another court, a district court in Michigan, has also held that
the President's wiretapping program was unconstitutional, although that
decision was reversed on procedural grounds by the Sixth Circuit. So to
the extent there is any case law that actually addresses this issue, it
totally undercuts the administration's arguments. And, of course, it
certainly does nothing to support those arguments.
We have also heard that past American Presidents have cited Executive
authority to order warrantless surveillance. But, of course, those past
Presidents--Presidents Wilson and Roosevelt are often cited--were
acting before the Supreme Court decided in 1967 that our communications
are protected by the Fourth Amendment and before Congress decided in
1978 that the executive branch can no longer unilaterally decide which
Americans to wiretap. So those examples are simply not relevant to this
debate.
In sum, the arguments that the President has inherent Executive
authority to violate the law are baseless. It is not even a close case.
And the repeated efforts in the Senate to pretend otherwise are very
discouraging.
It may seem that I am going over ancient history because this program
is no longer operating outside the law. But this is directly relevant
to the current debate. The bill the Senate is considering would
actually grant retroactive immunity to any companies that cooperated
with a blatantly illegal program that went on for more than 5 years and
about which the administration repeatedly misled Congress.
So if Congress short-circuits these lawsuits, we will have lost a
prime opportunity to finally achieve accountability for these many
years of lawbreaking. That is why the administration has been fighting
so hard for this immunity. It knows that the cases that have been
brought directly against the Government face much more difficult
procedural barriers and are unlikely to result in rulings on the merits
that would allow us to get to this direct question of the legality of
the President's warrantless wiretapping program.
These lawsuits involving the telephone companies may be the last
chance to obtain a judicial ruling on the lawfulness of the warrantless
wiretapping program. It is bad enough that Congress abdicated its
responsibility to hold the President accountable for breaking the law.
Now it is trying to absolve those who allegedly participated in his
lawlessness. This body should be condemning this administration for its
lawbreaking--not letting the companies that allegedly cooperated off
the hook.
This body certainly should not grant the Government new,
overexpansive surveillance authorities, which brings me now to the part
of the bill that in some ways concerns me even more than the immunity
provision. Let me explain why I am so concerned about the new
surveillance powers granted in this bill and why the modest
improvements made to this part of the bill do not even come close to
going far enough.
First, the FISA Amendments Act would authorize the Government to
collect all--all--communications between the United States and the rest
of the world. Now, that could mean millions upon millions of
communications between innocent Americans and their friends, families,
or business associates overseas could be legally collected. Parents
calling their kids studying abroad, e-mails to friends serving in
Iraq--all these communications could be collected, with absolutely no
suspicion of any wrongdoing at all, under this legislation.
Second, like the earlier Senate version, this bill fails to
effectively prohibit a practice known as reverse targeting; namely,
wiretapping a person overseas when what the Government is really
interested in doing is listening to an American here at home with whom
the foreigner is communicating. This bill does have a provision that
purports to address this issue. It prohibits intentionally targeting a
person outside the United States without an individualized court order
if ``the purpose'' is to target someone reasonably believed to be in
the United States.
But this does not do the job. At best, this prevents the Government
from targeting a person overseas as a complete pretext for getting
information on someone in the United States. But this language would
allow a lot more. The language would permit intentional and possibly
unconstitutional warrantless surveillance of an American so long as the
Government has any interest--any interest at all--no matter how small,
in the person overseas with whom the American is communicating. The
bill does not include language that had the support of the House and
the vast majority of the Senate's Democratic caucus that would have
required the Government to obtain a court order whenever a significant
purpose of the surveillance was to acquire the communications of an
American in the United States. The administration's refusal to accept
that reasonable restriction on its power is quite telling.
Third, the bill before us imposes no meaningful consequences if the
Government initiates surveillance using procedures that have not been
approved by the FISA Court, and the FISA Court later finds that those
procedures were unlawful. Say, for example, the FISA Court determines
that the procedures were not even reasonably designed to wiretap
foreigners outside the United States rather than Americans at home.
Under this bill, all that illegally obtained information on Americans
can be retained and used. Once again, as seems to recur over and over
again in this sordid tale, there are no consequences for illegal
behavior by the Government of the United States. That is just wrong.
Unlike the Senate bill, this new bill does generally provide for FISA
Court review of surveillance procedures before surveillance begins, and
that is one of the changes that has been touted by supporters of the
bill. But the bill also says if the Attorney General and the Director
of National Intelligence certify they don't have time to get a court
order, and that intelligence important to national security may be lost
or not timely acquired, then they can go forward without traditional
approval. This is a far cry from allowing an exception to FISA Court
review in a true emergency because, arguably, all intelligence is
important to national security and any delay at all might cause some
intelligence to be lost. So I am concerned that this so-called
``exigency'' exception could very well swallow the rule and undermine
any presumption at all of prior judicial approval. That could result in
no prior court review. No prior judicial review. Let's just trust an
administration--including this administration--rather than having the
checks and balances that clearly the Founders of our country understood
to be central in any situation such as this.
Fourth, this bill doesn't protect the privacy of Americans whose
communications will be collected in vast new quantities. The
administration's mantra has been: Don't worry, we have minimization
procedures. But minimization procedures are nothing more
[[Page S6459]]
than unchecked executive branch decisions about what information on
Americans constitutes ``foreign intelligence.'' That is why on the
Senate floor I joined with Senator Webb and Senator Tester earlier this
year to offer an amendment to provide real protections for the privacy
of Americans, while also giving the Government the flexibility that it
needs to wiretap terrorists overseas.
This bill relies solely on inadequate minimization procedures to
protect innocent Americans, and they are simply not enough.
As I said at the outset, some supporters of this bill have pointed to
improvements made since the Senate passed the bill earlier this year. I
appreciate that some changes have been made, but those changes are
either inadequate or they do not go to the core privacy issues raised
by this bill. In fact, as the distinguished Senator from Missouri, the
vice chairman of the Senate Intelligence Committee, said just
yesterday, the bill before us is ``basically the Senate bill all over
again'' with only ``cosmetic fixes.'' That is what the Republican vice
chairman of the committee said. Any Democrat who suggests that this is
somehow a big change, I don't think they read the bill, because it
doesn't do the job.
For example, I am pleased the bill provides for FISA Court review of
targeting minimization procedures, but as I mentioned, there is a
potentially gaping loophole allowing the executive branch to go forward
with surveillance without court review--an exception that could swallow
the rule. The bill also now explicitly directs the FISA Court to
consider whether the Government's procedures comply with the fourth
amendment, but that is an authority it should have had anyway.
The bill includes an inspector general review of the illegal program,
which is a positive change, but that doesn't make up for the lawsuits
that are going to be dismissed as a result of this legislation. I
strongly support the strengthened exclusivity language which, perhaps,
may defer a future administration from engaging in lawless behavior,
but let's not lose sight of the fact that FISA, as originally enacted,
clearly stated already that it and the criminal wiretap laws were the
exclusive means for conducting electronic surveillance. This was
confirmed in the strongest terms possible by a Federal district court
just last week.
The idea that we would simply trust this administration, especially,
to follow this exclusivity language when they have taken such a
dismissive attitude with respect to the current exclusivity language is
absurd. Only under the unprecedented legal theories of this
administration could that clear language be ignored, requiring Congress
to pass language that effectively says: No, we really mean it. If this
bill is enacted, I am by no means reassured that this administration,
which repeatedly broke the law and misled the public over the past 7
years, will now respect the exclusivity of FISA.
Now, the bill does contain a key protection for Americans traveling
overseas. It says if the Government wants to intentionally target
Americans while they are outside of the country, it has to get an
individualized FISA Court order based on probable cause. That is a
great victory, and it is one we should be proud of, but it does not
override the greatly expanded authorities in this bill to collect other
types of communications involving Americans.
In sum, these improvements are obviously not enough. They are nowhere
close. So I must strongly oppose this bill.
When you consider how we got here, this legislation is particularly
discouraging. We discovered in late 2005 that the President had
authorized an illegal program in blatant violation of a statute and
that Congress and the public had been misled in a variety of ways
leading up to this public revelation. Congress, to its credit, held
hearings on the program, but was largely stonewalled by the
administration for many months until the administration grudgingly
agreed to brief the intelligence committees and, more recently, the
judiciary committees. Nonetheless, the vast majority in the House and
Senate have never been told what happened. In 2006, when the
Republicans tried to push through legislation to grant massive new
surveillance authority to the executive branch, we stopped it. But now,
in a Democratic-controlled Congress not only did we pass the Protect
America Act, but we are now about to extend for more than 4 years these
expansive surveillance powers, and we are about to grant immunity to
companies that are alleged to have participated in the administration's
lawlessness.
I sit on the Intelligence and Judiciary Committees. I am one of the
few Members of this body who has been fully briefed on the warrantless
wiretapping program. Based on what I know, I can promise that if more
information is declassified about the program in the future, as is
likely to happen either due to the inspectors general report, the
election of a new President, or simply the passage of time, Members of
this body will regret that we passed this legislation. I am also
familiar with the collection activities that have been conducted under
the Protect America Act and will continue under this bill. I invite any
of my colleagues who wish to know more about these activities to come
speak to me in a classified setting. Publicly, all I can say is that I
have serious concerns about how those activities may have impacted the
civil liberties of all Americans. If we grant these new powers to the
Government and the effects become known to the American people, we will
realize what a mistake it was. Of that, I am sure.
So I hope my colleagues will think long and hard about their votes on
this bill and consider how they and their constituents will feel about
this vote 5, 10, or 20 years from now. I am confident that history will
not judge this Senate kindly if it endorses this tragic retreat from
the principles that have governed government conduct in this sensitive
area for 30 years. I urge my colleagues to stand up for the rule of law
and defeat this bill.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Vermont is
recognized.
Mr. LEAHY. Mr. President, I applaud the Senator from Wisconsin for
his statement. I concur with it.
The Senate has before it three amendments to bring accountability to
this legislation: the Dodd-Feingold-Leahy amendment, the Specter
amendment, and the Bingaman alternative. I intend to vote in favor of
each of these three amendments.
As I noted at the outset of this debate and consistently throughout
the course of Senate consideration of these matters, I oppose
legislation that does not provide accountability for the 6 years of
illegal, warrantless wiretapping initiated and approved by the Bush-
Cheney administration. The bill, if it is adopted without amendments,
seems intended to result in the dismissal of ongoing cases against the
telecommunications carriers that participated in the warrantless
wiretapping program without allowing a court ever to review whether the
program itself was legal. None of us are out to punish the
telecommunications carriers, but we worry if anybody is going to be
held accountable. As it is now, the bill would have the effect of
ensuring that this administration is never called to answer for its
actions and never held accountable in a court of law. I do not support
a result that says the President of the United States, whomever he or
she is, is above the law and, therefore, I would not support the bill
unless it is amended.
It is now almost 7 years since this President began efforts to
circumvent the law. In violation of the provisions of the governing
statute, the Foreign Intelligence Surveillance Act, this President and
his administration engaged in a program of warrantless wiretapping. I
believe that conduct was illegal. In running its program of warrantless
surveillance, the administration relied on ends-oriented legal opinions
prepared in secret and shown only to a tiny group of like-minded
officials.
Basically, the administration said: This is what we want for legal
advice, now give it to us. This is what we want to do to step outside
the law; now you go tell us we can do that. As chairman of the Senate
Judiciary Committee, of course I oppose that.
A former head of the Justice Department's Office of Legal Counsel
described this program as a ``legal mess.'' This administration wants
to make sure that no court ever reviews that
[[Page S6460]]
legal mess. The bill before us seems to guarantee they get their wish.
As Senator Specter and I have both confirmed during the course of
this debate, the administration worked hard to ensure that Congress
could not effectively review the legality of the program. Since the
existence of this program became known through the press, the Judiciary
Committee repeatedly tried to obtain access to the information its
members needed to evaluate the administration's legal arguments.
Indeed, Senator Specter, when he was chairman of the Judiciary
Committee, prepared subpoenas for the telecommunications carriers to
obtain information, simply because the administration would not tell us
directly what it had done, but those subpoenas were never issued; Vice
President Cheney intervened to undercut Senator Specter and prevent the
committee from voting on them.
There are public reports that at least one telecommunications carrier
refused to comply with the administration's request to cooperate with
the warrantless wiretapping. Surely that objection raised a red flag
for all involved. It is clear that the administration did not want the
Senate to evaluate the evidence and draw its own conclusions. Again, it
sought to avoid accountability.
If we look at the publicly available information about the
President's program, it becomes clear that title II is designed to tank
these lawsuits, pure and simple, and allow for the administration to
avoid accountability. The Senate Intelligence Committee said in a
report last fall that the providers received letters from the Attorney
General stating that the activities had been ``authorized by the
President'' and ``determined to be lawful.'' Guess what. These are
precisely the ``magic'' words that will retroactively immunize the
providers under title II of this bill. So the fix is in. The bill is
rigged, based on what we already know, to ensure that the providers get
immunity and the cases get dismissed.
So what if Americans' rights were violated. So what if laws were
violated. This bill makes the Federal courts the handmaiden to a
coverup. That is wrong.
Make no mistake. If title II becomes law, we would take away the only
avenue for Americans to seek redress for harms to their privacy and
their liberties, and there will likely be no judicial review of this
administration's illegal actions. Those who claim that American
citizens can still pursue their privacy claims against Government, they
know that sovereign immunity is a roadblock. They know that cases
against Government have been dismissed for lack of standing. They know
about the Government's ability to assert the state secrets doctrine.
They know the Michigan case that held the President's warrantless
wiretapping program illegal was later vacated on appeal for lack of
standing. Indeed, for all of the talk about holding the Government
accountable, they have chosen to do nothing to make any case against
the Government more viable. This is a red herring if ever there was
one. We are telling Americans we are closing the door. We are telling
Americans--law-abiding, honest, good, hard-working Americans--that we
are closing the courthouse door in their face because we have to
protect the President and those around him who may have done something
illegal.
Last week, a Federal judge in San Francisco ruled that FISA's
provisions trump the state secrets privilege. But that same judge was
constrained to hold that plaintiffs still must prove that they are
``aggrieved'' under FISA to maintain standing to sue the Government. It
is not at all clear whether these plaintiffs, or any others, can make
this showing. Absent congressional action to facilitate judgments on
the merits, these cases against the Government are unlikely to survive.
The report of the Senate Committee on Intelligence in connection with
its earlier version of the bill that also included retroactive immunity
is telling. The committee wrote:
The Committee does not intend for this section to apply to,
or in any way affect, pending or future suits against the
Government as to the legality of the President's program.
And later wrote:
Section 202 makes no assessment about the legality of the
President's program.
But neither that bill nor this one makes any allowance for such suits
against the government to proceed to a decision on the merits. That is
precisely what is lacking in this measure--an avenue to obtain
meaningful judicial review and accountability.
Those who support retroactive immunity for the telecommunications
carriers without providing an effective avenue to challenge the program
or obtain judicial review of its legality, support unaccountability,
pure and simple. I would have supported the efforts of the Government
to indemnify the telecommunications carriers if we could substitute the
Government to have accountability. I also support alternative efforts
by Senator Specter and Senator Whitehouse to substitute the Government
in those cases so that the cases could proceed to a judgment on the
merits. That would have allowed judicial review and provided for
accountability.
The Senate is going to vote on a bill today which does not allow
that. All the years I was growing up in Vermont we were told nobody is
above the law. All my time in law school we were told nobody is above
the law. We take an oath of office when we are sworn into this body
where there are only 100 of us to represent 300 million Americans, but
we are also told no one is above the law. We are about to vote on a
bill that says, well, the President and those people around him are
above the law.
Just as Vice President Cheney is not supposed to control the
Congress, the administration is not supposed to control the Federal
courts. In this democracy of coequal branches in which not even the
President is above the law, judicial review is an important mechanism
to correct the overreaching and excesses of the Executive. Since the
landmark case of Marbury v. Madison, the principle of judicial review
has been firmly established. Unfortunately, that principle is being
sacrificed to this administration's claim that it, outside of all other
administrations in this Nation's history--this administration, the
Bush-Cheney administration--should be able to act with absolute
impunity and act outside the law.
On the other hand, I believe a Federal court could well find that the
limitations this bill, if enacted, would place on the courts' ability
to rule on the legality of this program are themselves
unconstitutional.
Under the strictest read of the language of the bill, the cases in
question will most certainly be dismissed. Attorney General Mukasey
must simply certify to the court that the ``alleged'' activity was the
subject of a written request from the Attorney General, which indicated
that the activity was authorized by the President and ``determined to
be lawful.'' This process gives me, and I would hope the Federal
courts, pause.
If the judicial review provided by the bill is intended to be
meaningful, the only way for that to happen is if the courts, in fact,
review the legality of the warrantless wiretapping program. Surely, a
court might find that it cannot dismiss an American's claim of a
deprivation of rights based on the mere assertion by a party in
interest that it told another party that what they were doing was
``determined to be lawful.'' In this setting, in fact, the current
Attorney General is not certifying or representing to the court that
the warrantless wiretapping program was lawful. All the bill requires
is that the Attorney General certify that the phone company acted at
the behest of the administration and that the administration
``indicat[ed]'' that the activity was ``determined to be lawful''--by
somebody, at some time.
A court might reason that Congress could not have intended for the
court to abdicate its judicial review role and become a mere rubber
stamp. The court might nevertheless engage in ``meaningful'' judicial
review. Wouldn't that be great.
How else, the court might reason, is it to assure itself that the
Attorney General's certification is valid and worth affirming as a
justification for closing the court house doors to Americans claiming
deprivation of their constitutionally guaranteed rights? That is the
only way to provide any real meaningful judicial review.
Indeed, the reasoning would go, any other reading would be an
unconstitutional rule of decision. See United States v. Klein, 13 Wall.
128 (U.S. 1872). Congress simply does not have authority to tell the
courts, a coequal branch,
[[Page S6461]]
how it must decide a case. So, in order not to reach that
constitutional predicament, the court could interpret the statute to
allow it to review the legality of the President's warrantless
wiretapping program.
Another recent model for such meaningful review is that of the Court
of Appeals for the District of Columbia in the Parhat v. Gates case.
There, the appellate court invalidated a Combatant Status Review
Tribunal's decision that petitioner Huzaifa Parhat, a member of a
Chinese Muslim minority group called Uighurs, was properly designated
as an ``enemy combatant.''
Under the restrictive language of the Detainee Treatment Act, the
court's review in the Parhat case was expressly limited to
consideration whether the status determination of the CSRT was
``consistent with the standards and procedures'' specified by the
Secretary of Defense for CSRTs, and whether ``to the extent the
Constitution and laws of the United States are applicable, whether the
use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States.''
The Parhat decision shows that in order to make its review
meaningful, the court interpreted its role as reviewing the probity and
reliability of the evidence in order to reach its conclusion on the
validity of CSRT's designation of Parhat as an ``enemy combatant.'' In
so doing the court noted that to do otherwise would be ``perilously
close to suggesting that whatever the government says must be treated
as true, thus rendering superfluous both the role of the Tribunal and
the role that Congress assigned to this court.'' It noted that ``[t]o
do otherwise would require the courts to rubber-stamp the government's
charges'' rather than engage in meaningful judicial review.
I believe that independent judicial review would reject the
administration's claims to authority from the Authorization for the Use
of Military Force to engage in warrantless wiretapping of Americans in
violation of FISA. I believe that the President's claim to an inherent
power, a Commander-in-Chief override, derived somewhere from the
interstices or penumbra of the Constitution's Article II, would not
prevail over the express provisions of FISA.
Indeed, Chairman Rockefeller seemed to concede as much yesterday
morning when he asserted that nothing in his bill should be taken to
mean ``that Congress believes that the President's program was legal.''
He characterized the administration as having made ``very strained
arguments to circumvent existing law in carrying out the President's
warrantless surveillance program.''
At various points, Senator Rockefeller alluded to the
administration's argument that the Authorization for the Use of
Military Force was some sort of statutory override authority and the
administration's claim that the President has what Senator Rockefeller
called ``his all-purpose powers,'' which I understand to be the
administration's argument that inherent authority from Article II of
the Constitution creates a commander-in-chief override, and said that
these are not justifications for having circumvented FISA.
Consistent with Justice Jackson's now well-accepted analysis in the
Youngstown Sheet & Tube case, when the President seeks to act in an
area in which Congress has acted and exercised its authority, the
President's power is at it ``lowest ebb.'' So I believe that the.
President's program of warrantless wiretapping contrary to and in
circumvention of FISA will not be upheld based on his claim of some
overriding Article II power. I do not believe the President is above
the law.
What is most revealing is that the administration has worked so
feverishly to subvert any judicial review. That sends a strong signal
that the administration has no confidence in its supposed legal
analysis or its purported claims to legal authority. If it were
confident, the administration would not be raising all manner of
technical legal defenses but would work with Congress and the courts to
allow a legal test of its contentions and of its actions.
One Federal district judge in Detroit has already declared the
President's warrantless wiretapping program to have been
unconstitutional. Another in San Francisco just last week cast grave
doubt on the legality of the President's warrantless wiretapping
program, finding that the exclusivity provisions in FISA left no doubt
that operating outside of the statute's framework was unlawful.
I urge the courts to exercise their rightful role to ensure justice
is done.
As I have said, I recognize that this legislation also contains
important surveillance authorities. I support this new authority, and
have worked for years to craft legislation that provides that important
authority along with appropriate protections for privacy and civil
liberties. The Judiciary Committee reported such a bill last fall. I
commend House Majority Leader Hoyer and Senator Rockefeller, who
negotiated this legislation, for incorporating several additional
protections that bring the bill the Senate previously passed closer to
the Judiciary Committee's bill. While I would seek even greater civil
liberties protections in Title I, there is no doubt that this bill
provides stronger protections than the Senate bill I previously
opposed.
I note, in particular, the requirement of an Inspector General review
of the President's warrantless wiretapping program. It is a provision I
offered and insisted upon when the Judiciary Committee reported its
version of the FISA legislation. I had previously sought to add this
provision to the Senate Intelligence Committee's bill. This review will
provide for a comprehensive examination of the facts of that program
and should prove useful to the next President.
I believe still more protections for privacy and civil liberties are
necessary, and if this bill becomes law, I will work with the next
administration on additional protections.
I should emphasize that while the Inspector General provision serves
important purposes, its inclusion in this bill is no substitute for a
legal review of the President's warrantless wiretapping program.
Federal judges and Inspectors General perform different functions.
Inspector General reviews can be very useful for factual review of past
actions, and I expect the inspectors general to undertake a probing and
comprehensive review. But Inspectors General are not well-suited to
determine whether the President's warrantless wiretapping program was
legal. In fact, this bill prevents the Inspectors General from engaging
in that kind of legal review.
Courts, on the other hand, are well-suited to make these kinds of
legal determinations. They do it all the time. Federal judges make
conclusions of law every day in this country based on facts found by a
jury or, if the right to jury trial is waived, based on their own
factual conclusions. But this administration doesn't want this kind of
review. It has fought for years to avoid a determination by our courts
of the legality--or more precisely the illegality--of the President's
program. If the administration gets its wish through passage of this
bill, there will likely be no conclusive judgment on the lawfulness of
the President's program--ever--and no accountability.
I, therefore, cannot support this legislation without amendment. I do
not believe Congress should seek to take away the only viable avenue
for Americans to seek redress for harms to their privacy and liberties,
and the only viable avenue of accountability for the administration's
lawlessness. This administration violated FISA by conducting
warrantless surveillance for more than five years. They got caught. The
apparent purpose of this bill is to ensure that they will not be held
to account. That is wrong. I will vote to support the amendments before
us today to bring accountability to this legislation, but I will vote
no in opposition to the effort to secure immunity for this
administration's illegal activity.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator has 30
seconds remaining.
Mr. LEAHY. Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I have sought recognition to make the
final argument in support of my amendment pending on a very vital issue
facing this body.
We are asked today to do two things that I believe are unprecedented
in the
[[Page S6462]]
history of the Senate. First, we are called upon to vote on legislation
where most of the Members admittedly don't know what we are voting on;
second, we are stripping the Federal court of jurisdiction on some 40
cases that have been pending for more than 3 years and are in the
process of litigation.
On point 2, we are flying in the face of the most fundamental
decision in the history of the United States on constitutional law,
Marbury v. Madison, going back to 1803, 205 years, and Chief Justice
Marshall saying that it is emphatically the province and duty of the
judicial department to say what the law is.
But the Congress is now being asked by the administration to grant
retroactive immunity to the telephone companies, where the judge who is
presiding on the case, Chief Justice Vaughn Walker, in the Federal
court in San Francisco, has declared that the terrorist surveillance
program put into effect by the President violates the Constitution and
exceeds his constitutional authority in directly violating the
statutory provision that the exclusive way to wiretap is with court
approval.
Here we have a situation where it is admitted that most Members of
the House of Representatives, according to the House leadership, have
not been briefed on the program. What we have are allegations in the
legal papers as to having the telephone companies act at the request of
the Government to invade privacy, without going through the customary
judicial process of securing a warrant.
On the floor yesterday, after extended argument, it is plain that
most Members of the Senate have not been briefed on this program. There
is an old expression, ``buying a pig in a poke.'' It means buying
something and you don't know what it is you are buying. Well, that is
what the Senate is being asked to do today--to grant retroactive
immunity to a program where the Members don't know what the program is.
How does that comport with our reputation that we in the Senate so
pride ourselves on, being the world's greatest deliberative body?
I suggest that this may be a historical embarrassment, where we are
voting on matters where everybody knows we don't know what we are
voting on. The fact may be that we vote with some frequency on matters
that we don't know what we are voting on, where we have voluminous
reports that are impossible for any Senator to go through. But here we
are caught redhanded. Everybody knows we don't know what this program
is; yet we are granting retroactive immunity to the telephone
companies.
I believe the telephone companies have been good citizens. There is a
way to have the telephone companies protected without giving up the
program. That would be by substituting the Government as a party
defendant, so you could both have the program and have the telephone
companies protected.
Yesterday, in an extended discussion with the chairman of the
Intelligence Committee and other Members on the floor, I pressed to see
if anybody knew of any case that had been pending for more than 3
years, where Chief Judge Walker has handed down a lengthy opinion,
running some 27 pages, on the issue of state secrets on this electronic
surveillance. Just a week ago today, he handed down a 59-page opinion
declaring that the Presidential power exceeded the constitutional
authorization of article II. The first opinion is on appeal to the
Court of Appeals for the Ninth Circuit. And here we are stripping the
court of jurisdiction. I posed the question, Has that ever happened
before? And it hasn't happened before.
I intend to support the amendment and cosponsor the amendment by
Senator Bingaman, which would follow up on what the inspectors general
do, to have it returned to Congress to see if the program is working.
That is a good remedial step, but it doesn't go far enough. It has too
many ifs, ands, and buts in it. I think it is a good fallback position,
and I will support it. I urge my colleagues not to take Senator
Bingaman's amendment as a substitute for my amendment because it
doesn't go as far and it doesn't reach the constitutional issues.
We are dealing here with a matter that is of historic importance. I
believe that years from now, historians will look back on this period
from 9/11 to the present as the greatest expansion of Executive
authority in history--unchecked expansion of authority. The President
disregards the National Security Act of 1947 mandating notice to the
Intelligence Committee; he doesn't do it. The President takes
legislation that is presented by Congress and he signs it, and then he
issues a signing statement disagreeing with key provisions. There is
nothing Congress can do about it.
The Supreme Court of the United States has gone absent without leave
on the issue, in my legal opinion. When the Detroit Federal judge found
the terrorist surveillance program unconstitutional, it was affirmed by
the Sixth Circuit on a 2-to-1 opinion on grounds of lack of standing.
Then the Supreme Court refused to review the case. But the very
formidable dissenting opinion laid out all of the grounds where there
was ample basis to grant standing. Now we have Chief Judge Walker
declaring the act unconstitutional.
The Congress ought to let the courts fulfill their constitutional
function. It is understandable that Congress continues to support law
enforcement powers because of the continuing terrorist threat. No one
wants to be blamed for another 9/11. My own briefings on the telephone
companies' cooperation with the Government have convinced me of the
program's value, so I voted for it even though my amendment to
substitute the Government for the telephone companies was defeated in
the Senate's February vote.
Similarly, with great reluctance, I am prepared to support it again
as a last resort, even if it cannot be improved by providing for
judicial review. However, since Congress has been so ineffective in
providing a check and balance, I am fighting hard today again to secure
passage of my amendment to keep the courts open.
When the stakes are high, as they inevitably are, when Congress
addresses civil liberties and national security, Members frequently
must choose between the lesser of two imperfect options. Unfortunately,
we too often back ourselves into these corners by deferring legislation
until there is a looming deadline. Perhaps this is why so many of my
colleagues have resigned themselves to accepting the current bill
without seeking to improve it further.
Although I am prepared to stomach this bill, if I must, I am not yet
ready to concede that the debate is over. Contrary to the conventional
wisdom, I don't believe it is too late to make this bill better.
Perhaps the Fourth of July holiday will inspire the Senate to consider
its independence from the executive branch now that we have returned to
Washington.
These issues are extraordinarily complex. It is my hope that my
colleagues will focus on these two unprecedented acts where we are
called upon to vote for something we admittedly do not know what we are
voting for because we don't know what this program is; secondly, to
take the unprecedented step of intervening in the judicial process on a
case pending for more than 3 years in the Federal courts.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Vermont is
recognized.
Mr. SANDERS. Senator Leahy has yielded me his remaining time.
The PRESIDING OFFICER. Senator Leahy only has 30 seconds.
Mr. SANDERS. Yes. Mr. President, international terrorism is a serious
issue, and every Member of this body has pledged to protect the
American people, and we will do that. But we will and must do it within
the context of the Constitution of the United States and the law of the
land. No individual, no President, is above the law. This President,
perhaps more than any other in history, has abdicated the Constitution
of the United States. The time is now to stand up and say: No more.
Let's defeat this legislation. Let's assure the American people that
in fact we are a nation of laws, not individuals.
Thank you.
The PRESIDING OFFICER. Who yields time?
The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I ask that I be allowed to speak for up
to 10
[[Page S6463]]
minutes. I don't expect to use all that time. And then my colleague
from Connecticut, Senator Dodd, be allowed to speak for up to 15
minutes.
The PRESIDING OFFICER. That is part of the previous order.
Mr. BINGAMAN. Mr. President, first, let me comment on the statement
Senator Specter of Pennsylvania made about his own amendment. I support
his amendment. I wish to make it very clear that the amendment I am
offering is not intended as a substitute for his amendment. I favor his
amendment. I favor the amendment I am offering as well. And, of course,
I favor Senator Dodd's amendment as well, which he is going to speak
about in a few moments. I wished to make that clear.
Let me describe the amendment very briefly. I did that yesterday.
This amendment is cosponsored by Senators Casey, Specter, Clinton, and
Nelson of Florida. It is based on the simple proposition that we ought
to conduct a thorough investigation before we grant any retroactive
immunity to telecom companies.
In my view, the structure of this bill has it backward. As currently
drafted, it would grant immunity first, and then after those companies
are shielded for any potential liability for their past actions, the
legislation requires a comprehensive investigation regarding the
company's participation in the President's warrantless surveillance
program.
The amendment I am offering would fix the problem by putting in place
what I believe is a more logical process.
As I discussed yesterday, the amendment would do three things. First,
it would stay all the civil cases against the telecom companies as soon
as the legislation is signed into law. Second, it would allow time for
the inspectors general to investigate the circumstances surrounding
this warrantless surveillance program. And third, it would give
Congress 90 days to review the findings of that investigation before
the companies could ask a court to dismiss the cases pending against
them.
I believe this is a very modest proposal. It would not change any of
the substantive provisions in the immunity title. The amendment only
modifies the timing of when these companies may seek immunity.
The amendment would not prejudice or harm the telecom companies while
the investigation is being conducted. All the civil cases would be on
hold and neither side would be incurring litigation expenses.
It would not create any risk whatsoever of sensitive information
being leaked during the remainder of the litigation process. There
would be no evidence submitted to the court during this period of stay.
There would be no discovery. There would be no classified information
being discussed. As I have stated, the cases would be stayed, would be
on hold.
Lastly, the amendment would not hamper our Nation's ability to
collect necessary intelligence. The amendment does not limit any of the
authority being provided to the Government under this legislation to
conduct foreign intelligence gathering. It would not discourage telecom
companies from assisting the Government in the future. Under this
legislation, companies would still be required to comply with lawful
directives and would receive liability protection for any help they
provide.
But the amendment does do something that I believe is very important.
It would ensure that before these cases may be dismissed, Congress has
an opportunity to know exactly what illegal acts, if any, it is
forgiving. The Senator from Pennsylvania made a very strong case that
Members of the Senate do not know what it is we are granting immunity
for at this stage.
I believe the American people expect Congress to act in an informed
manner. Quite frankly, other than select members of the Intelligence
and Judiciary Committees, this Congress has not been fully informed
about the circumstances surrounding this program. That is precisely why
the investigation that is required under the legislation is so
important and precisely why it is so important that we get the results
of that investigation before we proceed.
We are talking about a program that was not conducted in accordance
with the law and from what we do know may have violated the
constitutional rights of many innocent Americans. I hope my colleagues
will agree it is reasonable to keep these suits from being dismissed
until at least we have a complete picture of what actions we are
shielding from liability.
I yield the floor and yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Mr. President, let me first, as I did last evening, begin
by commending our colleague from West Virginia, Senator Rockefeller,
who has the unenviable task of chairing the Intelligence Committee, a
complex committee with very serious issues before it. Whatever
differences we have should not in any way suggest a lack of
appreciation for what he and his staff and others do to try and bring
forth legislation to allow us to balance the needs of our security as
well as our rights as citizens.
It is that very question which draws me to this amendment I offered
which will be subject to a vote in a few minutes. This is a debate that
has gone on for the last 7 months, beginning with the Judiciary
Committee's reports of last fall, a debate last December and that
continued into January and has been going all winter and spring and
about to be culminated with the decisions we are about to make over the
next hour or so, including the amendment being offered by Senator
Specter and Senator Bingaman, both amendments I intend to support.
The amendment I have offered, along with Senator Feingold and a
number of our colleagues, simply strikes title II of this bill. Title
II of this bill is the title that grants retroactive immunity to the
telecommunications industry.
The facts are very clear. The telecommunications industry, based on
some documents, possibly a letter or others, decided it was appropriate
for them to gather virtually all the e-mails, telephone conversations,
and the like, of millions and millions of Americans, over a period of 5
or 6 years in the wake of 9/11. As I said repeatedly, had this gone on
a month or a year or so, I would not have raised objections, given the
emotion surrounding the attack on our country. But this program, I
suggest, would still be ongoing had it not been for a whistleblower who
helped identify the program.
This is not an issue of whether we disagree at all with revising the
Foreign Intelligence Surveillance Act to comply with the needs as our
enemies gather more sophisticated means by which they can do us harm.
It is the age-old question which has confronted this Republic of ours
for 232 years. And that is: How do we balance security with
simultaneously protecting the rights under our Constitution? Every
generation who has preceded us has wrestled with this question.
The one issue we do not subscribe to is the notion that to be more
secure, you have to give up rights. That is a fundamentally flawed
idea. Every generation who has suggested and adopted it has regretted
it in one case after another. Whether it was internment of Japanese
Americans out of fear and other such cases, in every instance when we
abandoned rights for security, we have come to regret it deeply.
I come, again, to offer this idea to allow the judiciary to do their
job. That is what they exist for, that is why the Founders created
three coequal branches of Government--the executive, legislative, and
judicial branches.
We are not deciding the case. We are merely saying the courts ought
to do that. Retroactive immunity for companies that may have broken the
law may well soon become the law. That is the danger. As certain as it
appears the outcome of the votes will be, equally certain, in my view,
is that this matter will not end today regardless of what we do. This
will end up in the courts, and there, not only the wisdom of granting
retroactive immunity to these companies will be questioned but the
constitutionality of that decision.
I have spoken at length about this legislation. It subjugates the
role of the courts. But even as this body moves forward with this bill,
opponents of retroactive immunity can take some solace in knowing it
will still ultimately be the judiciary that decides the
constitutionality of this action, as the Framers intended.
I can hardly see how it would have passed muster with our Founders.
It was, after all, James Madison who said:
[[Page S6464]]
I believe there are more instances of the abridgment of the
freedom of the people by gradual and silent encroachments of
those in power than by violent and sudden usurpations.
He spoke those words at the Virginia Convention to ratify the U.S.
Constitution.
I can hardly see how men who did not simply utter such sentiments,
but rather sacrificed everything in the name of them, could have
envisioned America ceding her hard-fought liberty in a moment of fear
or weakness.
Is this bill constitutional? This is not for me or any one of us to
decide. I am not a judge. None of us are. We are not a jury in this
case. None of us are. We are Senators who treasure the document we have
sworn to uphold. I have kept a copy with me every day, going back the
27 years I have served in this body.
What is for this body is to decide how we best safeguard our Nation's
security. Greater security for our citizens is what, of course, all of
us want from this bill. But if we have learned anything from this
administration, it is that there is a right way to protect our Nation
and a wrong way.
We learned that when even those of us in this body act with the best
of intentions, we can still do lasting damage because we are not acting
with foresight and prudence but with an impulsiveness and, in too many
cases, out of fear.
No one doubts for a moment the gravity of the threats we face or
continue to face. No one suggests we do not have an obligation to
monitor terrorists' communications with the utmost of vigilance. I wish
to make sure the Government has every tool it needs to do so. I have no
interest whatsoever in denying our Government what it needs to make our
country safe. I want our President to have the capabilities to stop
terrorists before they act, before they inflict harm on our country,
our communities, and our families. I think we can and must do that in a
way that balances national security with our rights and liberties.
But for reasons I have described at length in previous debates, this
so-called compromise strikes no balance at all, in my view.
Let us be very clear, the courts have continuously shown an ability
to handle cases with sensitive security issues. Chief Judge Vaughn
Walker, a Ronald Reagan appointee to the District Court to the Northern
District of California, who has virtually overseen all the cases
challenging the NSA's warrantless wiretapping program, demonstrated
this once again.
In a case against the Government, Judge Walker recently ruled ``FISA
preempts the state secrets privilege in connection with electronic
surveillance for intelligence purposes . . . '' This ruling suggests
that in suits against the telecommunications companies, they will be
able to defend themselves and not be hamstrung by the state secrets
privilege. At the very least, this decision highlights how premature it
would be for Congress to grant retroactive immunity at this time.
The sum and substance of our argument is very simply this: Now is not
the time to close the courthouse doors on this issue. I cannot say it
enough. My trust remains in the courts in cases argued openly and
judges presiding over them and juries of American citizens who decide
them. Our courts should be a source of our pride, not our
embarrassment. They deserve the chance to do the job the Framers
intended them to do.
As complex, as diverse, as relentless as the assault on the rule of
law has been, our answer to it is a simple one. Far more than any
President's lawlessness, the American way of justice remains deeply
rooted in our character as a people that no President can disturb. That
is why, even on this day, I remain full of hope and faith that we can
unite security and justice because we already have over the
generations.
I harbor no illusions about what is about to happen with this
legislation or its consequences. But even as this long fight draws to a
close, it is worth pausing for a moment to recognize those who have
joined us in writing its many chapters. They have not been written by
any one hand alone.
Senator Russ Feingold of Wisconsin has fought this battle with me
from the very beginning. His leadership has been articulate, his
commitment unwavering and unyielding.
The Senator from Vermont, Mr. Leahy, the chairman of the Judiciary
Committee, fought valiantly to bring the Senate Judiciary Committee
version of this bill that he crafted to the floor of this body. He has
been a staunch opponent of retroactive immunity.
The majority leader, Harry Reid of Nevada, has stood with us on this
fight. I thank him for it as well. It has not been easy to have been
the majority leader taking the position he has and also managing this
bill to move forward. Even as he fought and sought to balance his
personal opposition to retroactive immunity with his responsibility to
move this legislation as leader, he has given us every opportunity to
speak out against this legislation. He has worked hard to make sure the
world's foremost deliberative body, as it is often called, would,
indeed, be given a chance to deliberate over a matter that goes to the
very core of who we are as a republic. In Congresses past, I cannot
say, with certainty, that my colleagues and I would have been afforded
the opportunity the majority leader has given each and every one of us,
and I thank him for it.
Lastly, I thank the thousands who joined with us in this fight around
the country, those who took to the blogs, gathered signatures for
online petitions, created a movement behind the issue, men and women,
young and old, who stood up, spoke out, and gave us the strength to
carry on in this fight. Not one of them had to be involved, but they
chose to be involved for one reason and one reason alone: their deep
love for this country, the Constitution, and its liberties. They remind
that the silent encroachment of those in power, as Madison spoke of,
can, in fact, be heard if only we are willing to listen.
All of us, my colleagues and citizens around the country, share a
fundamental belief in our Constitution. We believe our constitution
isn't incidental to our security, rather it is its very foundation.
This notion that it is the rule of law that keeps us safe should not be
controversial. There should not be a partisan divide. I take no
backseat, as no one does, when it comes to protecting America's safety
and security. But if history has taught us anything, it simply doesn't
require sacrificing our freedoms to do that.
I do not believe history will judge this President kindly for his
contempt of the rule of law. But will history be any kinder to those of
us who have served as these transgressions have occurred on our watch?
I have two young daughters. Their generation is going to ask their
parents and grandparents some very pointed questions:
Where were you when the President asked you to repudiate the Geneva
Conventions and strip away the rights of habeas corpus? Where were you
when stories of secret prisons and outsourced torture first began to
surface and then became impossible to deny? And of today, they will
ask: Where were you when Congress was persuaded to shield wealthy
corporations that may well have knowingly acted outside of the law to
spy on our fellow citizens? Where were we in that debate?
History will not forget. It will not forget our role in any of this.
And just as surely as subsequent generations will ask all of us those
questions, what will be clear is that we will have failed to ask
ourselves one very fundamental question: Does America stand for the
rule of law or for the rule of men? That question never goes away. It
has been the same question asked for more than two centuries. It has
been with us, of course, these past 7 years in very strong and poignant
ways. It will haunt us long after this bill passes, long after this
administration recedes into history, long after we all have passed into
history ourselves. Indeed, generations of leaders and free societies
have struggled to answer the question for thousands of years.
That is the question every generation must answer for themselves. It
is a battle for the American soul, waged between our better angels and
our worst fears. Our Founders answered the question correctly. I ask
the question: Will we?
Mr. President, allow me to close with one of my favorite quotations,
one I have recited many times on the floor of this Chamber. It is from
Justice Robert Jackson's opening statement at the Nuremberg trials in
the summer of July of 1945. He said . . .
[[Page S6465]]
That four great nations, flushed with victory and stung
with injury, stay the hand of vengeance by voluntarily
submitting their captive enemies to the judgment of the law
is one of the most significant tributes that Power has ever
paid to Reason.
The tribute that Power owes to Reason is as clear today as it was
when those words were spoken more than half a century ago. That America
stands for a transcendent idea; the idea that laws should rule, not
men; the idea that the Constitution does not get suspended for
vengeance; the idea that when this Nation begins to tailor its eternal
principles to the conflict of the moment, it risks walking in the
footsteps of the very enemies we despise. As Margaret Thatcher said:
``When law ends, tyranny begins.''
Today, let us pay the tribute that Power owes to Reason today--in
this moment, with these votes. I implore my colleagues to vote against
retroactive immunity, against cloture, and above all, for the rule of
law.
Mr. President, I yield the floor.
Mr. ROCKEFELLER. Mr. President, yesterday, we heard some discussion
of last week's decision in the district court in California. In that
case, the court ruled that FISA limits the power of the executive
branch to conduct foreign intelligence surveillance activities and
limits the executive branch's authority to assert the state secrets
privilege. That opinion, however, is only minimally relevant to the
debate before us today for three reasons.
First, the decision was in a case against the U.S. Government. In
contrast, title II applies only to cases against telecommunications
companies, not to suits brought against the Government. The case will
therefore be unaffected by title II.
Furthermore, because a provider could be entitled to protection from
suit under existing law even if the Government acted
unconstitutionally, this decision does not resolve the question of
whether telecommunications companies acted lawfully or should be
entitled to immunity.
Second, the decision in the case is only one step in a lawsuit that
may continue in the district court and which will likely be appealed.
This decision, which is a long way from being final, does not affect
the need for the Congress to act on this legislation.
Third, the court found that the civil liability provisions of FISA
trump the state secrets privilege only to the extent that those civil
liability provisions apply. This is not a broad exemption to the state
secrets privilege. The opinion does not change the fact that the
companies are and, unless we pass title II, will continue to be unable
to assert their statutory defenses because of the Government's
assertion of the state secrets privilege.
The one thing that the decision shows us is that the court can
consider the issue of constitutionality in those suits being brought
against the Government. Congress therefore does not need to require the
courts to consider that issue in suits against private companies.
The PRESIDING OFFICER (Mr. Casey). The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, is there a time set for the beginning
of the votes?
The PRESIDING OFFICER. There is not. There is approximately 30
minutes of debate remaining.
Mr. ROCKEFELLER. This Senator wanted to be clear about that because
Senator Bond will be coming. I will speak shortly, and then he will
come down to speak also.
Mr. President, we are at quite a remarkable period now, because we
are actually closing the debate on something which we have been
discussing in this Chamber, in committees, around the Congress, in the
press, in general, for quite a long time. It has been an amazing
debate, and today we close debate on the Foreign Intelligence
Surveillance Act Amendments of 2008.
I wish to thank all of my colleagues for engaging in this critically
important debate, both on and off the Senate floor, whether for or
against whatever amendments we will be voting on today. People have
expressed their principles, they have been articulate, they have spoken
with restraint and dignity and eloquence, and I respect that very much.
I think that is the essence of senatorial behavior. We have vigorously
debated the appropriate controls for electronic surveillance to collect
foreign intelligence information since the disclosure was made 2\1/2\
years ago about the President's wireless surveillance program, which is
a travesty--a travesty from 2001 to 2007. An absolute travesty. And
because of the contributions not only of those who have supported
earlier versions of this legislation but also of those who have opposed
various provisions to deal with those issues, we have moved forward to
craft, in this Senator's judgment, a strong bipartisan, bicameral
compromise that is supported not just by the Senate but also by the
House, which was unwilling to support it before at all, but also by the
Attorney General and the Director of National Intelligence, both of
whom are entirely relevant to what is in this bill and what is to be
said about what is in this bill.
This final product is critical to the Nation's security. I am aware
of both our rights and our security. In my job as chairman of the
Intelligence Committee, I have to look at both. I was brought up in a
tradition, in a family which worried about rights, and I have fallen
into a position where I am in a position to see what goes on in this
world. In a post-9/11 situation, it is very different. It is like
comparing fighting wars against the Soviets as opposed to against al-
Qaida, the Taliban, or whatever it is. It is a very different world.
You can't tell who anybody else is, you can't tell what their
intentions are, you can't tell what is in a suitcase which might be
lying anywhere in this building or anywhere else.
When you walk around this Capitol, you see levels of security which
you have never seen before. We frequently evacuate this building and
our offices, all because of what happened on 9/11, and what had been
planned well before that. So it is serious. And not that it makes any
difference--it makes us no more important than any other citizen in the
United States--but we do know that United Airlines 93 was headed for
this building and for this complex. So there is an instinct to
understand that those who oppose us and who would have us change our
way of life and punish us for what they see as our sins are very
serious in their work, patient in their work, and willing to wait to
continue their work.
The final product is, therefore, critical to the Nation's security,
and it sets forth a legal framework to reflect the enormous changes in
telecommunications technology over the last 30 years. The bill couples
this improvement in foreign intelligence collection against foreign
targets overseas with important protections for civil liberties,
including the review by the Foreign Intelligence Surveillance Court of
the targeting and minimization procedures governing these collection
activities.
In addition, the bill ensures that when Americans overseas are the
target, that a FISA Court judge, rather than the Attorney General--in a
very important change--decide that there is clear authority and
probable cause for intelligence agencies to target such an individual.
The bill also requires the Attorney General to develop guidelines to
prevent prohibited activities, such as reverse targeting. That was put
before us by Senator Feingold, who is in opposition to this bill but
who made that contribution to this bill, along with others, to ensure
individual FISA Court orders are obtained, when required.
You can't do anything these days without a FISA Court review if you
are in the Government. You can't do anything. That is only title I of
the bill, not title II.
There are new oversight and reporting requirements to Congress in the
agreement and a sunset date that means these issues will be addressed
during the next administration. And I think that is very important,
because some people said: Well, let this law be permanent and forever.
There were those of us who didn't want that to happen. We said: We
are in new territory here. It is a post-9/11 world. It is very
different. So we need to put down into law what we believe, but we also
need to go back and review that, to make sure we have done it
correctly. So in a period of 4\1/2\ years, during the administration of
the next President, he will be able to review, along with us, what we
have done and
[[Page S6466]]
decide if we need to make any changes. I like that. I think that is
fair. I think that is democratic.
Certainly the most controversial aspect of this legislation has been
those provisions that set standards and procedures that allow the
courts to find limited immunity protection for electronic communication
service providers alleged to have assisted the Government in the
President's warrantless surveillance program. Under this agreement,
however, these provisions are not the blanket immunity that the
administration first proposed, nor are they a statement by the Congress
either pro or con on the legality of the program.
We have debated these liability protection provisions in great depth
over the past 2 days--over the past 2 years, really. As I have said in
opposition to the amendments that were offered to strike or amend the
limited liability provisions, I am convinced the bill takes the right
approach. We did have efforts to have substitution rather than
immunity, and they were defeated. They were defeated in the Judiciary
Committee, they were defeated on the floor of the Senate, and it was
thought if they would be brought up again, they would have been
defeated again. So we have been through this. The Senate has worked its
judgment on that approach.
I believe the requirement in the bill for the inspectors general to
complete a comprehensive review of the President's program is much more
likely to provide the American people a complete set of facts about the
program on a timely basis, to the extent that classification permits,
than would continuation of the pending litigation. In other words, we
have improved it.
And to be quite honest, we passed this 13 to 2 in committee, and then
with 68, 69 votes, whatever it was in the Senate, we passed the Senate
bill that came out of the Senate Intelligence Committee, but the House
had not. They were not happy. They had their reasons. And so we went to
them, the vice chairman, Christopher Bond, and myself and our staff,
and we worked with them endlessly. We worked with the White House, to
some extent; with the DNI, the Director of National Intelligence, the
Attorney General's office, extensively working through individual ways
of compromising to make sure that we could protect companies that
provide the intercept and the collection of communications we need to
get, but to do so in a way which made it clear that the Government was
the issue, not them. And we have done that.
Finally, with this agreement, we settle the issue of whether past or
future congressional authorizations for the use of military force that
do not include a reference to surveillance may be used to justify the
conduct of warrantless electronic surveillance. This was an
extraordinarily important thing to do, and Senator Feinstein deserves a
lot of credit for that--the exclusivity amendment. We have said you
cannot conduct any of this collection outside of FISA. You have to have
a warrant. You cannot go outside. You cannot use what the President
likes to refer to as inherent powers to do anything he wants. You can't
do that. You have to have authorization from the Congress in order to
do that. That is clear--for the first time in this bill. That is huge.
That restricts some of the comments we have been hearing earlier.
FISA remains the exclusive means by which electronic surveillance or
interception will be conducted from this point forward unless the
Congress sees some reason to make it either stronger or whatever. With
enactment of this bill, there will be no question that Congress intends
that only an express statutory authorization for electronic
surveillance or interception may constitute an additional exclusive
means for that surveillance or interception. In other words, you cannot
do anything more without congressional authorization. That is
oversight. That is what we ought to be doing. It is what we should have
done but we didn't do. The world changed. We didn't change quickly
enough. But we have changed enormously in this bill.
This is buttressed further with the clarification that criminal and
civil penalties can be imposed for any electronic surveillance that is
not conducted in accordance with FISA or specifically listed provisions
of title 18.
In closing, I would like to address my colleagues who would have
preferred a different result than the agreement before us today. I urge
them not so much now--there being not much time--but I urge them in the
coming days, weeks, and months to look at this legislation in its
entirety; not to think about a single point here or a single point
there but to look at the whole texture of it. This is what we are
doing. That is why we have a sunset date, so we will again be looking
at it, looking at the larger picture, seeing what the balance really is
and are we keeping it properly as between safety and civil rights,
individual rights. That is very important.
This is a bill which provides a framework and stability within the
Foreign Intelligence Surveillance Act for a collection system that will
work well for national security. That is very important to this Nation.
That is very important to this body and to every single American. This
bill is vastly better than the Protect America Act, obviously, enacted
last August, and much preferred to any additional short-term extension
of that flawed statute--which was one approach. This is a bill which
contains important safeguards for civil liberties and effective
mechanisms for oversight.
I do not think any of the committees that deal with these measures
will ever be the same again, nor have they been in the last year and a
half with respect to oversight. The vigor, the passion with which we
sought, leveraged, coerced in some cases, the administration to make
more people read into the program, to make more people a part of the
discussion, make more people a part of the knowledge which they held so
closely to themselves--I remember at one point I was one of 4 out of
535 people who were briefed on the program, and they kept saying on
television: The Congress is briefed. And this was a joke, this was a
farce. I will not go into it further but, believe me, it was. They did
not do that, they did not want to do that. That is their nature. Now it
is different. Now we are all over them. And we have a lot more to do
before this Congress gets out with respect to the oversight factor of
Congress, which is so important to us and to the Nation.
Support for the agreement says to the intelligence professionals who
will implement the new authority that Congress takes seriously its
oversight responsibilities. Some of them do not like that fact. They do
not want us to. They want to be able to do what they have always done
because they could do what they always wanted to do--before the world
changed. Now they cannot. Yes, we have had intelligence committees for
a long time, and, yes, they have done work for a long time, but there
has never been a greater need for tough oversight.
Sometimes when the Director of the CIA calls me--and I don't think I
am saying anything privileged here--and he wants to tell me about
something good that has happened--it is a secure conversation on a
secure phone--I say: Look, when I hear from you, I want to hear what
you want to tell me that is good, and I also want to hear from you
about something that is not working right.
That is the pattern which is developing. They are a little more timid
about coming up to us. We have to negotiate more to have them come
before us, but we do it because we need them and they need our
oversight. They are not free to do entirely what they want to do, but
we have to give them the full right to keep us safe, yet balance, as I
believe we do in this bill, civil liberty protections.
I simply close by congratulating all people involved. I think for a
subject which was meant to be understood by so few in this body, many
people have expressed views on the floor and to many of us in private.
It has been the subject of caucus discussions.
It is a major piece of legislation, and I urge my colleagues to
oppose the three remaining amendments, and I urge my colleagues to vote
yes on final passage. They will serve their Nation well.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, is there an order established
here under unanimous consent?
The PRESIDING OFFICER. There is 3 minutes remaining for the Senator
[[Page S6467]]
from Wisconsin, Mr. Feingold, and 9 minutes for the Senator from
Missouri, Mr. Bond.
Mr. NELSON of Florida. Will the Senator allow me to have a couple of
moments?
Mr. BOND. Off Senator Feingold's time.
Mr. NELSON of Florida. What is the procedure? Since Senator Feingold
is not here, is that locked in as such for him?
Mr. ROCKEFELLER. Mr. President, might I inquire whether that was
entirely necessary--or, rather, of the Parliamentarian--is that
entirely necessary? The Senator does wish to speak. We are not starting
votes quite yet. There does not seem to be a total limit on that, a
time set for that, and the Senator has been wanting to speak for a
number of days. I would be happy if he would be able to do that.
The PRESIDING OFFICER. There is only 3 minutes on the majority side
for Senator Feingold. It would require unanimous consent.
Mr. ROCKEFELLER. What about leader time?
The PRESIDING OFFICER. Only the leader has leader time.
Mr. ROCKEFELLER. And that is correct.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Ms. CANTWELL. Mr. President, I rise today to express my strong
disappointment with the FISA Amendments Act of 2008, H.R. 6304. While
proponents of this bill have claimed this bill was designed to monitor
foreign-to-foreign communications that pass through the U.S. without a
warrant, the bill actually goes much further--providing a broad
expansion of authority to conduct domestic surveillance.
We all want to protect our country's national security interests and
protect Americans from those who would do us harm, but to do so without
accountability or without adequate checks and balances is contrary to
the vision of our Founding Fathers.
I recognize that some changes have been made to this bill over the
past 6 months but those cosmetic changes have failed to adequately
protect the privacy rights of innocent Americans.
This bill permits the Government to collect all Americans'
international communications, even communications of innocent Americans
with no connection to terrorism or other national security concerns.
This bulk collection of innocent Americans' private communications is
unacceptable and contrary to American values and fundamental
Constitutional protections.
While this administration has ignored the congressional mandate that
the Foreign Intelligence Surveillance Act is the exclusive means for
conducting wiretapping activities on American citizens, Congress can
not ignore the weighty constitutional issues being decided here today.
I am also very troubled that telecom companies will not be held
accountable for participation in the Bush administration's warrantless
surveillance program. Congress should not be providing blanket immunity
for telecommunications companies that cooperated with the
administration's warrantless wiretapping programs. We don't know
precisely what those companies did or the full extent of what they did.
This bill effectively grants retroactive immunity to companies that
aided the Bush administration's warrantless wiretapping over the last 7
years. It would effectively dismiss 40 cases pending against the
telecommunications companies that are undergoing judicial review.
Judicial review is a critical component of our Government to check
potential overreaching by the executive branch.
This administration wants to ensure that no court has the opportunity
to review potential illegal activity, effectively slamming the door
shut before the judicial system can determine whether American
citizens' rights were violated.
This is why I voted in support of Senator Dodd's amendment to strike
the immunity provision today, and I am disappointed that it was not
adopted. Congress should respect judicial review and not take away the
only opportunity for redress available to American citizens for
potential overreaching by this administration.
According to public documents and media reports, a telecom company
allegedly split off a copy of the Internet traffic transported over
fiber-optic cable running though its San Francisco office and diverted
it to another room under the supervision of a Federal Government
agency, where the copy was transported to equipment that could review
and select out the contents and data mine call patterns of
communications.
The reason I say allegedly is because all the details are classified,
sources and methods, and those who do not know can at best only make
educated guesses while those who do know can not or will not say.
Now the Electronic Frontier Foundation believes that the telecom
company has deployed similar facilities in 15 to 20 different locations
around the country, implying a significant fraction of the
communications to and from the telecom firm's domestic customers could
have been examined illegally. And it is critical that we get to the
bottom of this.
Congress would be acting even though only last week Judge Walker
issued a key ruling holding that held that the government could not
prevent plaintiffs from submitting unclassified evidence to support
their claims against telecommunications companies. Congress should
respect the judiciary's role and allow it to move forward with these
cases.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. BOND. Mr. President, how much time do I have?
The PRESIDING OFFICER. Nine minutes.
Mr. BOND. I yield a minute and a half to my distinguished colleague
from Florida.
Mr. NELSON of Florida. I am grateful to the vice chairman. I wish to
say--and I will do it in a minute and a half--how much I appreciate the
chairman and vice chairman being able to come up with a product that we
need so we get some certainty about the court review of this process so
we can balance this interest of going after the terrorists but at the
same time protecting the civil liberties of American citizens and
American persons who are here legally in the country. I think the bill
does that. We have struggled with it for a year and a half in our
committee. I am certainly going to support the final product.
There are obviously some matters we have had in the Intelligence
Committee that we are not able to discuss here. I am sure the people
listening understand that. I just want to say on the controversial
issue of immunity that I do not believe in blanket immunity for the
phone companies, and that is why, when this issue was in front of our
Intelligence Committee, I offered language to deny them immunity. But
it failed, my amendment, and it failed miserably. So when it came to
the floor, I offered a compromise to the full Senate, along with
Senator Feinstein, that would have required a special court to review
the phone companies' action, but that failed as well.
Now I am backing an amendment by Senator Bingaman that would at least
delay immunity until the inspectors general of the U.S. Government
complete their investigation of the President's warrantless wiretapping
program. Upon completion of the report, the Senate will have 90 days to
act before immunity is granted to the telecommunications companies.
This will allow us time to change some minds if real wrongdoing is
found.
Overall, I believe this legislation significantly improves civil
liberties protections for Americans while enabling our intelligence
community to listen in on terrorists. This is an important step forward
and I will support this legislation.
Mr. BOND. Mr. President, I thank the distinguished Senator from
Florida, who has been a hard-working member of the Intelligence
Committee and has been a great contributor. I am sorry he does not
agree with the compromise we reached with the House to have the
district courts make a review. I think that is important. That
satisfies our needs.
Several points made on the floor today and previously need to be
answered. It has been said that the new surveillance powers allow the
Government to collect all communications between the United States and
the rest of the world, millions and millions of communications between
innocent Americans, parents calling children
[[Page S6468]]
abroad, people serving in Iraq. There is no prohibition on reverse
targeting.
A plain reading of the bill shows us that this statement is simply
inaccurate. As the Senator from Utah said earlier today: Unless you
have al-Qaida on your speed dial, you are not going to be collected
against. There are safeguards in place to ensure that any conversations
that do not have foreign intelligence information will not be kept or
shared, they will be minimized or suppressed.
Americans either inside or outside the United States may not be
targeted without court order. That ``outside of the U.S.'' protection
was something we added on a bipartisan basis in the Senate Intelligence
Committee.
In addition to approving any collection against Americans, anybody in
the United States, an American overseas, the FISA Court will review all
procedures used to target foreign communications and make sure that
communications with innocent Americans are minimized or suppressed.
As far as reverse targeting goes, I refer my colleagues to section
702(B) of the bill which says:
An acquisition authorized under subsection 8 may not
intentionally target a person reasonably believed to be
located outside the United States if the purpose of such
acquisition is to target a particular known person reasonably
believed to be in the United States.
I can assure you that I and other members of the Intelligence
Committee have reviewed the procedures, have seen the operations, know
the supervision, and know the very tight constraints under which these
professionals operate. They are overseen by supervisors, by higher
level authorities, by inspectors general, by lawyers, their own
lawyers, and lawyers from the Department of Justice. Somebody made an
error and collected some criminal information a year or so ago and that
was dealt with appropriately. There is no ability for somebody, even a
rogue who happens to get in, to get away with targeting innocent
American communications.
There has been a lot of debate also about the Senators having access
to all of the information. As I pointed out earlier, we set up the
Senate Select Committee on Intelligence to provide the most highly
classified information to members of the committee. I have worked hard
with the chairman, and we have opened to the full Intelligence
Committee far more information than we ever got before, because I
believe the Intelligence Committee has a heavy responsibility to make
sure that what is being done stays within the law, stays within the
guidelines, and protects the rights of American citizens.
But if you say that every intelligence matter should be briefed to
the entire Congress, where does that stop? Should we then brief the New
York Times directly so they can publish a story and decide whether the
intelligence activity is acceptable? I think not. I think we have seen
the problems that occur when leaks have compromised our intelligence.
They have done it too often.
Some people still want to debate the legality of the TSP, saying it
is blatantly illegal. Well, they persist in their belief that the
President lacks the constitutional authority to conduct warrantless
foreign intelligence surveillance, even though article II has not
changed in over 200 years.
The FISA Court itself, en banc, In re: Sealed Case, has noted the
President has that authority, and if the Congress tried to pass a law
saying the President does not have that authority, it would be found to
be unlawful.
The intelligence community has been overseen by the Intelligence
Committee, and we have found clearly that the companies acted in good
faith. Regardless, however, of the legality of the President's TSP, it
is a matter of fundamental fairness. These providers should not be
punished by forcing them to litigate frivolous claims or by delaying
this much needed relief.
Without these companies, without their active participation on this
and many other matters, the intelligence community is fearful and has
lost cooperation in the past. They are taking risks by being good
patriotic Americans, and there are some who want to punish them. They
want to kick them to get at the administration. Well, this bill does
not prohibit lawsuits against the Government or Government officials.
I believe the time has come for us to pass a bill after 15 months. We
now know that we have before us the ability to give clear authority,
direction, and guidelines to the intelligence community to operate to
keep us safe. We have added new protections, and if the President had
not followed the advice of the ``gang of eight'' and had tried to
reform the FISA rather than using article II, we would not only be
debating September 11, there would be many others.
I urge my colleagues to vote down all these amendments and pass this
badly needed modernization of intelligence collection, electronic
surveillance, and the provisions of the additional privacy rights and
protections for American citizens.
I yield the floor.
Amendment No. 5064
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided prior to a vote on the amendment offered by the Senator from
Connecticut, Mr. Dodd.
Mr. ROCKEFELLER. All time has been yielded. I ask unanimous consent,
en bloc, that the vice chairman and I ask for the yeas and the nays on
all of the upcoming votes.
The PRESIDING OFFICER. Without objection, the yeas and nays may be
requested on all three amendments.
Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays are ordered.
The Senator from Connecticut.
Mr. DODD. There is 2 minutes equally divided?
The PRESIDING OFFICER. The Senator is correct.
Mr. DODD. Mr. President, this has been a long debate. It started last
fall. Again, let me commend the two members here, the chair and ranking
member of the committee. I respect their efforts. But my friend from
Missouri has made my case. This is a matter for the courts to decide,
not for the legislative branch to decide. It is why we have three
coequal branches of Government.
It is not our business as a juror and judge to determine the legality
of what occurred here. This much we do know through published reports:
Since 1978, 18,748 requests for warrants from the FISA Court have been
granted; 5 have been rejected.
Why did this administration not proceed with the normal course of
events here and seek justification and legal authority for the
vacuuming up of private information of American citizens? All of us
here want our agencies to do everything they can to protect our
security. But all of us equally care about the liberties of our
country.
The false dichotomy that is being suggested by what is in this bill,
that in order to be more secure we have to give up rights, is a
dangerous dichotomy. It is a false choice.
Previous generations have made it. We should not. Let's strike this
title, allow the courts to determine whether what occurred was legal
and then proceed.
Some of the companies did not do what others did because they felt it
was not legal, what they were being asked to perform. Clearly there was
some doubt in the minds of people as to justification. So I happen to
believe the best way to proceed, as did Judge Walker, appointed by
Ronald Reagan to the district court which has handled most of these NSA
cases in the past, that the secret privilege will be protected, the
court can do its job and determine the legality here. It is not the
place for the Senate to act as the judicial branch of Government. That
is why the Founders created three coequal branches of Government. That
is what the issue is, the rule of law or the rule of men. That is what
this amendment does by striking this title and allowing these matters
to go before the court. I urge the adoption of the amendment.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Permit me to relieve the Senator from Connecticut, a good
friend and a good legislator, of some of his concerns. No. 1: During
the President's terrorist surveillance program, even though it was
operating under article II, he went to the FISA Court to get warrants
for listening in on American communications, the same procedure we have
outlined in this bill
[[Page S6469]]
today. But what he was able to do was to listen in on terrorists
reasonably believed to be abroad, which is now included in our bill.
Article II is clear that he has that right. Article II was used by
President Bill Clinton for a physical search, a physical search of
Aldridge Ames' home; and the Congress responded by giving him more
power.
Secondly, it is said that the article II should be challenged. I
point out that there is no ban, no ban on lawsuits such as a lawsuit
before Judge Walker, on lawsuits going forward against the Government
or Government officials.
The Intelligence Committee conducted a comprehensive review of the
TSP. We determined, on a strong bipartisan basis, that the providers
acted in good faith pursuant to representations from the highest level
of the Government that the TSP was lawful. It is not right to punish
patriotic Americans who step forward and help their Government by
subjecting them to harassment of lawsuits.
I urge the defeat of the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Massachusetts (Mr.
Kennedy) is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 32, nays 66, as follows:
[Rollcall Vote No. 164 Leg.]
YEAS--32
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Clinton
Dodd
Dorgan
Durbin
Feingold
Harkin
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Obama
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Whitehouse
Wyden
NAYS--66
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Wicker
NOT VOTING--2
Kennedy
McCain
The amendment (No. 5064) was rejected.
Amendment No. 5059
The PRESIDING OFFICER. There will now be a period of 2 minutes of
debate, equally divided, prior to a vote on the amendment offered by
the Senator from Pennsylvania, Mr. Specter.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, the Senate is not in order.
The PRESIDING OFFICER. The Senate is not in order. Please take your
conversations out of the Senate.
The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I urge my colleagues to vote for the
pending amendment to avoid two unprecedented actions. One is that the
Senate is being called upon to vote on retroactive immunity for a
program that most of the Members do not know and have not been briefed
on. We frequently vote on matters that we do not know about but not
when it is so blatant, when it is on the record that we do not know
about it, we are caught red-handed. We ought not to be giving
retroactive immunity on a program where most of the Members have not
been briefed.
The second unprecedented act would be to intervene in a court
decision which has been pending for 3 years, where a judge has found
the terrorist surveillance program unconstitutional, where it is on
appeal to the Ninth Circuit. And Marbury v. Madison, which is the
cornerstone of this democracy, says the courts have to interpret the
Constitution.
Mr. BYRD. Right.
Mr. SPECTER. Vote for this amendment.
I thank the Chair, especially for securing order. It is
unprecedented. There is another unprecedented act today.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I oppose this amendment, which would
require the district court to assess the constitutionality of the
President's program--which is not what this is about--before it could
dismiss cases against any telecommunications companies which
participated in it.
The amendment unnecessarily puts the burden of constitutionality--a
burden that lies squarely on the shoulders of the Government--on the
shoulders of telecommunications companies that cooperated with the
Government in good faith. This is unfair.
Because the Government requires prompted cooperation from
telecommunications companies, we do not ask those companies to make
detailed legal assessments prior to cooperating with the Government.
Their protection from suit should not be limited based upon
constitutional questions they had no obligation to assess.
The significant constitutional question of whether the President's
program was constitutional or lawful is properly addressed in cases
against Government officials who are not immune. These cases can and
should continue, without regard to this legislation.
I ask that people oppose this amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Massachusetts (Mr.
Kennedy) is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER (Mr. Menendez). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 37, nays 61, as follows:
[Rollcall Vote No. 165 Leg.]
YEAS--37
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Harkin
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Murray
Obama
Reed
Reid
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--61
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--2
Kennedy
McCain
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for the adoption of this amendment, the amendment is withdrawn.
Amendment No. 5066
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided prior to a vote on the amendment offered by the Senator from
New Mexico, Mr. Bingaman.
The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, first, I ask unanimous consent that
Senator Feinstein be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. Mr. President, the bill that is pending before us has
the sequence of events in the wrong order. It provides that once the
bill is enacted, companies can go into court and get the lawsuits
dismissed. After that, there is an investigation provided for
[[Page S6470]]
by the inspectors general to determine what was going on in this
program and what, in fact, we are providing immunity for. That is the
wrong sequence.
What we ought to do is to stay the cases, stay any proceedings on
these cases, keep them in court, have the investigation done--a 1-year
investigation, which is provided for in the bill, and then have 90 days
in which Congress can review that investigation and the results of it.
Only after that would the companies be able to go into court and seek
immunity. That is a much more realistic way to proceed. I am glad we
have cosponsors of this amendment who support the final bill, we have
cosponsors who oppose the final bill.
I hope all Senators will look at this and see this as something they
can support. It would improve the legislation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Missouri.
Mr. BOND. Mr. President, the simple fact is, the IGs have already
reviewed this bill. I agreed to a limited inspectors general overall
review, even though the Senate Intelligence Committee has reviewed the
program on a bipartisan basis. At a time when we are urging more
congressional oversight, why would we again turn over the question of
the executive branch's actions to an executive branch agency when the
committee has clearly said there is no reason to deny retroactive
liability protection to these areas?
Now, there are some who don't like the program at all. There are some
who don't like the administration. They want to kick the administration
by penalizing the companies, by dragging the companies through a
continuing stretch of frivolous lawsuits. The Senator from Pennsylvania
admitted that there is going to be no recovery. The lawsuits are
designed to kill it. This amendment would get a veto, and we would have
to start all over. Please vote no.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, for Members here, we are going to do this
vote now, and then the Republican caucus--because of Senator Helm's
funeral--is going to be today. So when the Republican caucus is
completed, at 2, 2:15, we will have the final two votes before a 4
o'clock vote today on Medicare. So we will have two votes this
afternoon starting at about 2 or 2:15.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
Mr. DURBIN. I announce that the Senator from Massachusetts (Mr.
Kennedy) is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 42, nays 56, as follows:
[Rollcall Vote No. 166 Leg.]
YEAS--42
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Clinton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Johnson
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Obama
Reed
Reid
Salazar
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--56
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Kyl
Landrieu
Lieberman
Lugar
Martinez
McConnell
Murkowski
Nelson (NE)
Pryor
Roberts
Rockefeller
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--2
Kennedy
McCain
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for the adoption of this amendment, the amendment is withdrawn.
____________________
[Congressional Record: July 9, 2008 (Senate)]
[Page S6470-S6476]
FISA AMENDMENTS ACT OF 2008--Continued
Cloture Motion
The ACTING PRESIDENT pro tempore. Under the previous order, pursuant
to rule XXII, the Chair lays before the Senate the pending cloture
motion, which the clerk will report.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on H.R. 6304, the FISA
Amendments Act of 2008.
E. Benjamin Nelson, John D. Rockefeller IV, Thomas R.
Carper, Mark L. Pryor, Bill Nelson, Dianne Feinstein,
Robert P. Casey, Jr., Barbara A. Mikulski, Claire
McCaskill, Kent Conrad, Daniel K. Inouye, Mary L.
Landrieu, Joseph I. Lieberman, Sheldon Whitehouse, Evan
Bayh, Ken Salazar.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call is waived.
There is 2 minutes of debate evenly divided. Who yields time?
Mr. BOND. I yield myself 1 minute in support of cloture.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, some opponents of this legislation claim
that Congress is usurping the authority of the courts and that their
trust lies in single, lifetime appointed judges in the judicial branch.
I strongly disagree.
The Constitution set up three coequal branches of Government. Our
Constitution gives Congress the ability to determine the jurisdiction
of Federal courts. This power is particularly important and necessary
today in sensitive matters of national security.
Further, the courts, including the FISA Court, have recognized the
executive branch's expertise in matters of national security. They have
stated that national security matters are not within their purview. It
is entirely appropriate for this Congress to end this litigation and
not entrust this matter any further to the courts with respect to the
liability of particular participants in the program in the private
sector. They can still sue the Government. We think a matter of
fairness requires we protect those who assisted.
The ACTING PRESIDENT pro tempore. Does anyone seek time in
opposition? If not, all time is yielded back.
The question is, Is it the sense of the Senate that the debate on
H.R. 6304, the FISA Amendments Act of 2008, shall be brought to a
close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN, I announce that the Senator from Massachusetts (Mr.
Kennedy) is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Arizona (Mr. McCain).
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 72, nays 26, as follows:
[Rollcall Vote No. 167 Leg.]
YEAS--72
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Obama
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
[[Page S6471]]
NAYS--26
Akaka
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Clinton
Dodd
Durbin
Feingold
Harkin
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--2
Kennedy
McCain
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 72, the
nays are 26. Three-fifths of the Senators duly chosen and sworn having
voted in the affirmative, the motion is agreed to.
The question is on third reading of the bill.
The bill (H.R. 6304) was ordered to a third reading and was read the
third time.
Electronic Communication Service Provider
Mr. BOND. Mr. President, I rise to engage the distinguished chairman
of the Select Committee on Intelligence in a brief colloquy.
Mr. ROCKEFELLER. I yield to the Senator.
Mr. BOND. I thank the Senator. Today we have been debating the merits
of title II of this bill, the title that contains the carrier liability
protection provisions. I know that we both agree that title II is
critically necessary to protect our national security.
I would like us to focus for a moment on a small but important point
related to the meaning of the term ``electronic communication service
provider'' in title II. This is a term that was contained in the
bipartisan Senate bill and was carried over in the current compromise
bill.
The term ``electronic communication service provider'' was
intentionally drafted to encompass the full spectrum of entities being
sued in a covered civil action. For example, if a provider received a
written request or directive and the only assistance provided to the
Government by that provider's related corporate entities was pursuant
to that written request or directive, the related corporate entities
should be entitled to the protections of section 802 as long as any
assistance they provided meets the requirements of that section.
Senator Rockefeller, do we share this common understanding of the
meaning of the term ``electronic communication service provider''?
Mr. ROCKEFELLER. Thank you, Senator Bond. I completely agree with
your description of the meaning of ``electronic communications service
provider.''
The definition itself makes clear that the term is intended to
include entities that are telecommunications carriers, providers of
electronic communications service, providers of remote computing
services, and any other communication service provider that has access
to transmitted or stored wire or electronic communications.
Significantly, the definition also includes any parent, subsidiary,
affiliate, successor, or assignee of such entities, as well as any
officer, employee or agent of such entities.
Mr. BOND. Thank you Mr. Chairman.
Mrs. FEINSTEIN. Mr. President, as the debate over the FISA
legislation comes to a conclusion, and as a member of the Intelligence
Committee for 7\1/2\ years, I would like to comment once again on why I
support this bill.
Let there be no doubt: 7 years after
9/11, our country continues to face serious threats. There are some who
seek to do us grave harm.
So there is no more important need than obtaining accurate,
actionable intelligence to help prevent such an attack.
At the same time, there have to be strong safeguards to ensure that
the Government does not infringe on Americans' constitutional rights.
I believe this bill strikes an appropriate balance. It protects
Americans and their privacy rights.
This legislation is certainly better than the Protect America Act in
that regard and makes improvements over the 1978 FISA law.
This bill provides for repeated court review of surveillance done for
intelligence purposes. It ends, once and for all, the practice of
warrantless surveillance. It protects Americans' constitutional rights
both at home and abroad. It provides the Government flexibility to
protect our Nation. It makes it crystal clear that FISA is the law of
the land--and that this law must be obeyed.
For more than 5 years, President Bush ran a warrantless surveillance
program--called the terrorist surveillance program--outside of the law.
The administration did not have to do this. This specific program
could have been carried out under FISA--and I believe it should have
been.
With this bill, we codify and clarify that this limited, intelligence
program will be carried out under the law.
This legislation allows the Government to collect information from
members of specific terrorist groups or specific foreign powers. It is
focused on collecting the content of communications from specific
people. If those people are Americans, a warrant is required. Period.
So today, we are faced with three options:
No. 1. We can pass this bill. It is comprehensive and improves
protections for U.S. persons and updates the FISA law to meet today's
national security challenges; or
No. 2. We can extend the Protect America Act. This bill was a stop-
gap measure passed last August for a 6-month temporary period to
provide time to develop this legislation. It was meant to be temporary,
and it should be only temporary.
No. 3. We can do nothing. If we do not pass legislation before mid-
August, America will essentially be laid bare--unable to gather the
critical intelligence that we need.
We will lose the ability to collect information on calls into and out
of the United States from specific terrorist groups. The fact is, like
it or not, the collection of signals intelligence is indispensable if
we are to prevent another attack on our homeland.
Given these three options, I think the choice is clear.
The legislation is a significant improvement over the Protect America
Act and over the 1978 FISA legislation.
Let me indicate certain substantial improvements:
This bill ends warrantless surveillance. Except in rare emergency
cases, all surveillance has to be conducted pursuant to a court order.
The FISA Court reviews the Government's procedures and applications
before surveillance happens.
This bill strengthens the court's review. Not only must the FISA
Court approve any surveillance before it is started, this court is
given more discretion, with a higher standard of review, over the
Government's proposals. The Protect America Act limited the court to a
rubberstamp review. This bill changes that.
This bill requires that surveillance be subject to court-approved
minimization.
In 1978, Congress said that the Government could carry out
surveillance on U.S. persons under a court warrant but required the
Government to minimize the amount of information on those Americans who
get included in the intelligence reporting. In practice, this actually
means that the National Security Agency only includes information about
a U.S. person that is strictly necessary to convey the intelligence.
Most of the time, the person's name is not included in the report. That
is the minimization process.
If an American's communication is incidentally caught up in
electronic surveillance while the Government is targeting someone else,
minimization protects that person's private information.
Now, the Protect America Act did not provide for court review over
this minimization process at all. But this bill requires the court in
advance to approve the Government's minimization procedures prior to
commencing with any minimization program. That is good. That is the
third improvement.
This bill prohibits reverse targeting. There is an explicit ban on
reverse targeting. Now, what is reverse targeting? That is the concern
that the National Security Agency could get around the warrant
requirement.
If the NSA wanted to get my communications but did not want to go to
the FISA Court, they might try to figure out who I am talking with and
collect the content of their calls to get to me. This bill says you
cannot do that. You cannot reverse target. It is prohibited. This was a
concern with the Protect America Act, and it is fixed in this bill.
This bill goes further than any legislation before it in protecting
U.S. person privacy rights outside of the
[[Page S6472]]
United States. It requires the executive branch to get a warrant
anytime it seeks to direct surveillance of collected content from a
U.S. person anywhere in the world. Previously, no warrant was required
for content collection outside the United States.
Finally, there are numerous requirements in the bill for various
review of the surveillance activities by agency heads and by inspectors
general. The FISA Court and the Congress will be kept fully informed on
the operations of this program in the future.
Finally, exclusivity. Mr. President, I have spoken multiple times on
this floor about the importance of FISA's exclusivity provisions.
Before 1978, there was no check on the President's ability to conduct
electronic surveillance. However, in 1978, Congress passed FISA,
intending it to be the only way. Congress intended that FISA would be
the only way--the exclusive means--to conduct surveillance on U.S.
persons in the United States for foreign intelligence purposes.
President Carter acknowledged that when he signed the bill.
Nonetheless, this administration took the position that FISA was not
exclusive. First it stated that FISA didn't apply to these particular
surveillance activities. Then it said that Congress gave it authority
through the Authorization for the Use of Military Force in Afghanistan.
Then it said that the President couldn't be bound by an act of Congress
because he had his own authority under the Constitution.
I reject all of these arguments. And now a Federal court has
addressed the subject of exclusivity head-on.
On July 2, Chief Judge Vaughn Walker of the U.S. District Court for
the Northern District of California delivered a decision in a case
brought against the U.S. Government for its surveillance. Judge Walker
wrote:
Congress appears clearly to have intended to--and did--
establish the exclusive means for foreign intelligence
surveillance activities to be conducted. Whatever power the
executive may otherwise have had in this regard, FISA limits
the power of the executive branch to conduct such activities
and it limits the executive branch's authority to assert the
state secrets privilege in response to challenges to the
legality of its foreign intelligence surveillance activities.
(M:06-cv-01791-VRW, p. 23)
These are powerful words in the opinion.
So it is not just clear legislative intent, it is the current
judicial position that FISA was and is exclusive.
Yet, before the recess, it was asserted on the floor that the
President has authority under article II of the Constitution to go
around FISA. He does not, in my view.
Moreover, they claim that the exclusivity language in the bill
acknowledges the President's constitutional authority to conduct
electronic surveillance outside of FISA. It does not.
As the author of this language, let me state emphatically that the
clear intent of the language is to bind the Executive to this law.
Now, certain Senators are contending that this exclusivity language
would allow the President to go outside of FISA.
Let me be clear: this provision is not intended to, nor does it,
provide or recognize any new authority to conduct electronic
surveillance in contravention of FISA.
It was drafted very carefully with input and agreement from people
from both sides of the Intelligence Committee and the Judiciary
Committee, the Department of Justice, and the Office of the Director of
National Intelligence.
The only way the President can move outside of FISA will be with
another specific statute, passed by both Houses and signed by the
President.
In summary, the exclusivity language in this bill absolutely does not
recognize the President's claimed ``Article II'' authorities to conduct
surveillance in contravention of FISA or any other law.
The bottom line is that FISA has always been the exclusive means to
conduct electronic surveillance, and it continues to be the exclusive
means. And no President, now or in the future, has the authority to
move outside the law.
Finally, Mr. President, I want to set straight who in Congress was
notified about the program and when. Some are saying that the Congress
was briefed.
This is not true.
Eight Members of the House and Senate were briefed on the program
around the time of its inception, shortly after September 11, 2001: the
House and Senate leadership and the chairmen and ranking members of the
Intelligence Committees.
The 13 rank-and-file members of the Senate Intelligence Committee,
who by law are to be kept ``fully and currently informed'' of
intelligence activities, were not briefed until well after the program
was publicly disclosed in the New York Times in December 2005--4 years
later. I want to make this crystal clear.
The chairman and the ranking member of the Judiciary Committee--which
shares jurisdiction over FISA--were not briefed until a significant
period of time after the full membership of the Intelligence Committee
was notified.
Finally, I want to say a few words about immunity.
Let me be clear, this particular immunity language is not ideal. I
would have approached this issue differently.
When the legislation was before the Senate in February, I moved an
amendment to require that the FISA Court conduct a review of whether
the telecommunications companies acted lawfully and in good faith.
Unfortunately, my amendment was not adopted, but I continue to believe
it is the appropriate standard.
I have cosponsored an amendment by Senator Bingaman that would stay
action on all pending lawsuits until 90 days after Congress receives a
report, required elsewhere in this bill, by the relevant inspectors
general on the President's surveillance program. That would give
Congress a chance to decide on immunity based on a third-party review.
If lawmakers took no action within 90 days, the provisions would go
into effect.
I have spent a great deal of time reviewing this matter. I have read
the legal opinions written by the Office of Legal Counsel at the
Department of Justice. I have read the written requests to
telecommunications companies. I have spoken to officials inside and
outside the Government, including several meetings with the companies
alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed
to protect against further terrorist acts. This actually happened
within weeks of 9/11. I think we can all understand and remember what
the situation was in the 3 weeks following 9/11.
The companies were told the surveillance program was authorized and
that it was legal.
I am one who believes it is right for the public and the private
sector to support the Government at a time of need. When it is a matter
of national security, it is all the more important.
I think the lion's share of the fault rests with the administration,
not with the companies.
It was the administration who refused to go to the FISA Court to seek
warrants. They could have gone to the FISA Court to seek these warrants
on a program basis, and they have done so subsequently.
So I am pleased this bill includes independent reviews of the
administration's actions to be conducted by the inspectors general of
the relevant departments.
This bill does provide a limited measure of court review. It is not
as robust as my amendment would have provided, but it does provide an
opportunity for the plaintiffs to be heard in court, and it provides an
opportunity for the court to review these request documents.
Mr. President, this is not a perfect bill. It is the product of
compromise designed to make sure that it provides the needed
intelligence capabilities and the needed privacy protections.
I think the bill strikes that balance and that the Nation will be
made more secure because of it.
Mr. BIDEN. Mr. President, I rise today in opposition to the Foreign
Intelligence Surveillance Amendments Act of 2008. As one of the
cosponsors of FISA in 1978, I am fully aware of the importance of
giving the administration the surveillance tools it needs to keep us
safe. This is a very difficult vote and I do not question the judgment
of those who have chosen to support the bill. But because I am
concerned that this bill authorizes surveillance that is broader than
necessary to
[[Page S6473]]
protect national security at the expense of civil liberties and because
it gives blanket retroactive immunity to the telephone companies, I
have decided not to support it.
One of the defining challenges of our age is to combat international
terrorism while maintaining our national values and our commitment to
the rule of law and individual rights. These two obligations are not
mutually exclusive. Indeed, they reinforce one another. Unfortunately,
the President's national security policies have operated at the expense
of our civil liberties. The examples are legion, but the issue that
prompted the legislation before us today is one of the most notorious--
his secret program of eavesdropping on Americans without congressional
authorization or a judge's approval.
After insisting for a year that the President was not bound by the
Foreign Intelligence Surveillance Act's clear prohibition on
warrantless surveillance of Americans, the administration subjected its
surveillance program to FISA Court review in January of 2007.
Then, last August, citing operational difficulties and heightened
threats that required changes to FISA, Congress passed the Protect
America Act--over my objection and that of many of my colleagues. I am
submitting with this statement the objections I made at that time.
The Protect America Act, which sunset last February, amended FISA to
allow warrantless surveillance, even when that surveillance intercepted
the communications of innocent American citizens inside the United
States.
The administration identified two problems it faces in conducting
electronic surveillance under FISA. First, the administration wanted
clarification that it did not need to obtain a FISA warrant in order to
conduct surveillance of calls between two parties when both of those
parties are overseas. Because of the way global communications are now
transmitted, many communications between people all of whom are
overseas are nonetheless routed through switching stations inside the
United States. In other words, when someone in Islamabad, Pakistan
calls someone in London, that call is likely to be routed through
communications switching stations right here in the United States.
Congress did not intend FISA to apply to such calls, and I support a
legislative fix to clarify that point.
The second problem the administration identified is more difficult.
Even assuming that the Government does not need a FISA warrant to tap
into switching stations here in the United States in order to intercept
calls between two people who are abroad--between Pakistan and England,
for example--if the target in Pakistan calls someone inside the United
States, FISA requires the government to get a warrant, even though the
government is ``targeting'' the caller in Pakistan.
The administration wants the flexibility to begin electronic
surveillance of a ``target'' abroad without having to get a FISA
warrant to account for the possibility that the ``foreign target''
might contact someone in the United States. I agree with the
administration's assessment of the problem, but this bill would go far
beyond what is necessary to meet these new technological challenges.
This bill's approach would significantly expand the scope of
surveillance permitted under FISA by exempting entirely from the
warrant requirement any calls to or from the United States, as long as
the Government is ``targeting'' someone reasonably believed to be
located outside the United States.
The Government could acquire these communications regardless of
whether either party is suspected of any wrongdoing and regardless of
how many calls to innocent American citizens inside the United States
were intercepted in the process.
Although the bill gives the FISA Court a greater role than earlier
bills did, it still fails to provide for a meaningful judicial check on
the President's power. The FISA Court's role would be limited to
reviewing the Government's targeting procedures and its minimization
procedures--the procedures it uses to limit the retention and
dissemination of information it has required. But it would be required
to approve them as long as they met the general requirements of the
statute, which is written broadly.
In addition, unlike the Judiciary Committee version of the bill I
supported earlier this year, this bill neither limits the Government's
use of information collected under procedures the FISA Court later
deems inadequate, nor does it expressly give the FISA Court authority
to enforce compliance with orders it issues.
I am concerned that because of the way this bill is drafted, it could
be interpreted to preclude the FISA Court from ordering the Government
to destroy all communications of innocent Americans that it
incidentally collects during its surveillance. If I were certain that
the FISA Court had the power to order the destruction of the
communications of innocent Americans, it might tip the balance in favor
of my supporting the bill, even though I oppose blanket retroactive
immunity.
As for immunity, although I can understand why in the immediate
aftermath of the attacks on September 11 the telephone companies would
have cooperated with the Government, I believe it is inappropriate for
Congress to grant blanket retroactive immunity without knowing what it
is granting immunity for.
Furthermore, cases against the carriers are already making their way
through the courts and I have every confidence in the court's ability
to interpret and apply the law. Retroactive immunity would undermine
the judiciary's role as an independent branch of government.
When the Senate passed FISA, after extensive hearings, thirty years
ago by a strong bipartisan vote of 95 to 1, I stated that it ``was a
reaffirmation of the principle that it is possible to protect national
security and at the same time the Bill of Rights.'' I still believe
that is possible, but not if we enact this bill.
Mr. President, I am in support of Senator Rockefeller's proposal to
address shortcomings in our intelligence collection authorities. I have
studied Senator Rockefeller's bill closely and believe that it is an
appropriate, temporary fix that adequately protects both our national
security and Americans' privacy and civil liberties. It includes
important safeguards against executive abuse--safeguards that are
essential for an administration that has demonstrated so frequently
that it simply cannot be trusted.
The Rockefeller bill is narrowly tailored to address the two problems
the administration has said it faces in conducting electronic
surveillance under the Foreign Intelligence Surveillance Act, as that
law is currently written.
First, the administration wants clarification that it does not need
to obtain a FISA warrant in order to conduct surveillance of calls
between two parties when both of those parties are overseas. Because of
the way global communications are now transmitted, many communications
that take place entirely overseas are nonetheless routed through
switching stations inside the United States. In other words, when
someone in Islamabad, Pakistan, calls someone in London, England, that
call may well be routed through communications switching stations right
here in the United States. FISA was never intended to apply to such
calls, and I support a legislative fix to clarify that point.
The second problem the administration has identified is more
difficult. Although neither FISA nor the Constitution requires the
President to get a warrant if the target of surveillance is in Pakistan
calling London, or anywhere else outside the United States, if the
target in Pakistan calls someone in the United States, FISA requires
the Government to get a warrant, even though the Government is
``targeting'' the caller in Pakistan.
Senator Rockefeller's bill would give the Government great
flexibility to conduct surveillance of targets abroad, with prior
approval of the FISA Court, while protecting the privacy of innocent
Americans in the United States.
Under this bill, the FISA Court would be required to issue a warrant
upon a minimal showing that the targets of surveillance are overseas
and not in the United States. The bill provides protection for innocent
Americans in the United States--if the foreign target's communications
began to involve a significant number of calls
[[Page S6474]]
into the United States, the Government would be required to end
surveillance pending receipt of a new FISA Court order that the target
overseas was a suspected terrorist.
Senator Rockefeller's approach also ensures robust oversight.
Congress would get the actual FISA Court orders, and, every 60 days,
Congress would receive the list of targets who turned out to be in the
United States and the number of persons inside the United States whose
communications were intercepted. This is more information than Congress
receives today, and it would enable us to verify the administration's
claim that they are targeting suspected terrorists without
unnecessarily violating the privacy of law-abiding Americans.
Senator Rockefeller's bill sunsets in 6 months, at which point
Congress can, if necessary, craft a permanent, sensible, and
Constitutional fix to FISA that ensures the American people are
protected from terrorism and from encroachments on their civil
liberties and individual freedoms. The President has asked that we go
further, that we give him more unchecked power and discretion to
eavesdrop on Americans' conversations without a warrant and without
congressional oversight. His request raises many concerns, and Congress
should deny it.
The President's proposal would significantly expand the scope of
surveillance permitted under FISA by exempting entirely any calls to or
from the United States, as long as the Government is directing its
surveillance at someone reasonably believed to be located abroad. The
Attorney General and the Director of National Intelligence would make
this determination on their own, and they would merely certify, after-
the-fact, to the FISA Court that they had reason to believe the target
is outside the United States, regardless of how many calls to innocent
American citizens inside the United States were intercepted in the
process. This would be a breathtaking and unconstitutional expansion of
the President's powers and it is wholly unnecessary to address the
problems the administration has identified.
Furthermore, the administration would not even limit this unchecked
surveillance to persons suspected of involvement in international
terrorism--it would cover the collection of any foreign intelligence
information, which can include the collection of trade secrets and
other information unrelated to the threat posed by al-Qaida.
I have said before that one of the defining challenges of our age is
to effectively combat international terrorism while maintaining our
national values and our commitment to the rule of law, individual
rights, and civil liberties. Unfortunately, the President has attempted
to protect America by unnecessarily betraying our fundamental notions
of constitutional governance and individual rights and liberties.
I will support giving the administration the tools it needs to track
down terrorists, but I will not give the President unchecked authority
to eavesdrop on whomever he wants in exchange for the vague and hollow
assurance that he will protect the civil liberties of the American
people. This administration has squandered the trust of Congress and
the American people.
The administration's approach is constitutionally infirm and it is
unnecessary to address the specific problems it has identified. The
Rockefeller bill is a carefully calibrated approach that protects the
American people from both terrorism and violations of their civil
liberties.
I urge my colleagues to join me in supporting it.
Mr. BYRD. Mr. President, in 1771, Samuel Adams observed:
The liberties of our country, the freedom of our civil
Constitution, are worth defending at all hazards; and it is
our duty to defend them against all attacks. We have received
them as a fair inheritance from our worthy ancestors; they
purchased them for us with toil and danger and expense of
treasure and blood, and transmitted them to us with care and
diligence. It will bring an everlasting mark of infamy on the
present generation, enlightened as it is, if we should suffer
them to be wrested from us by violence without a struggle, or
to be cheated out of them by the artifices of false and
designing men.
Under the artifice of defending our nation from terrorists, President
Bush would have Congress surrender our liberties and the freedom of our
civil Constitution. This bill, the Foreign Intelligence Surveillance,
FISA, Amendments Act of 2008, is supposed to correct unconstitutional
authorities contained in last year's ``Protect America Act'' that
permitted widescale warrantless Government surveillance of innocent
Americans' private international communications, much of it facilitated
by telecommunications companies in a manner that is under court review.
However, this bill undercuts that judicial review and, in effect,
grants complete retroactive immunity to those companies for anything
illegal they might have done for the last 6 years. That provision
undermines the Constitution's fourth amendment protections.
This bill continues Government surveillance of communications coming
into and out of the United States without full fourth amendment
protections. Remember the fourth amendment? It reads:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The President would have you believe that this bill would provide
additional powers to prevent another 9/11. But 9/11 did not happen for
want of these powers. It was not a failure of Government to monitor
private communications. Rather, it was a failure of the Government to
monitor the reports of the FBI and of the intelligence community. It
happened because the administration did not take seriously reports
suggesting that what actually happened was being planned by al-Qaida.
Just as he exploited 9/11 to lead us to war in Iraq, President Bush now
wants to exploit his failures to attack our fundamental freedoms--
freedoms that formed the foundations of this Nation.
There is no doubt that certain accommodations need to be made to
address advances in technology. However, this bill goes too far. If the
Government can collect all communications coming into or out of the
United States, using powerful computers to shop among them without
probable cause that the person making or receiving the communication is
involved in anything illegal, and without any court providing a check
upon the abuse of that power, that does not meet my ``reasonable
man's'' definition of fourth amendment compliance. And that is not the
``fair inheritance'' won for us by our Founders at such a great price.
Mrs. CLINTON. Mr. President, one of the great challenges before us as
a nation is remaining steadfast in our fight against terrorism while
preserving our commitment to the rule of law and individual liberty. As
a Senator from New York on September 11, I understand the importance of
taking any and all necessary steps to protect our Nation from those who
would do us harm. I believe strongly that we must modernize our
surveillance laws in order to provide intelligence professionals the
tools needed to fight terrorism and make our country more secure.
However, any surveillance program must contain safeguards to protect
the rights of Americans against abuse, and to preserve clear lines of
oversight and accountability over this administration. I applaud the
efforts of my colleagues who negotiated this legislation, and I respect
my colleagues who reached a different conclusion on today's vote. I do
so because this is a difficult issue. Nonetheless, I could not vote for
the legislation in its current form.
The legislation would overhaul the law that governs the
administration's surveillance activities. Some of the legislation's
provisions place guidelines and restrictions on the operational details
of the surveillance activities, others increase judicial and
legislative oversight of those activities, and still others relate to
immunity for telecommunications companies that participated in the
administration's surveillance activities.
While this legislation does strengthen oversight of the
administration's surveillance activities over previous drafts, in many
respects, the oversight in the bill continues to come up short. For
instance, while the bill nominally calls for increased oversight by the
FISA Court, its ability to serve as a meaningful check on the
President's power is debatable. The clearest example of this is the
limited power given to
[[Page S6475]]
the FISA Court to review the government's targeting and minimization
procedures.
But the legislation has other significant shortcomings. The
legislation makes no meaningful change to the immunity provisions.
There is little disagreement that the legislation effectively grants
retroactive immunity to the telecommunications companies. In my
judgment, immunity under these circumstances has the practical effect
of shutting down a critical avenue for holding the administration
accountable for its conduct. It is precisely why I have supported
efforts in the Senate to strip the bill of these provisions, both today
and during previous debates on this subject. Unfortunately, these
efforts have been unsuccessful.
What is more, even as we considered this legislation, the
administration refused to allow the overwhelming majority of Senators
to examine the warrantless wiretapping program. This made it
exceedingly difficult for those Senators who are not on the
Intelligence and Judiciary Committees to assess the need for the
operational details of the legislation, and whether greater protections
are necessary. The same can be said for an assessment of the telecom
immunity provisions. On an issue of such tremendous importance to our
citizens--and in particular to New Yorkers--all Senators should have
been entitled to receive briefings that would have enabled them to make
an informed decision about the merits of this legislation. I cannot
support this legislation when we know neither the nature of the
surveillance activities authorized nor the role played by
telecommunications companies granted immunity.
Congress must vigorously check and balance the president even in the
face of dangerous enemies and at a time of war. That is what sets us
apart. And that is what is vital to ensuring that any tool designed to
protect us is used--and used within the law--for that purpose and that
purpose alone. I believe my responsibility requires that I vote against
this compromise, and I will continue to pursue reforms that will
improve our ability to collect intelligence in our efforts to combat
terror and to oversee that authority in Congress.
Mr. REED. Mr. President, I wish to spend a few minutes discussing why
I vote against final passage of H.R. 6304, the House companion to S.
2248, the FISA Amendments Act of 2008. I would like to begin by
commending Senators Rockefeller and Bond who have negotiated this bill,
literally for months, in order to reach the compromise that we voted on
today.
I believe that many aspects of this bill are an improvement, not only
to the Protect America Act which passed last August, but also to S.
2248, the bill we voted on in February. I opposed both of those bills.
This compromise bill specifies that FISA and certain other statutes are
the exclusive means for conducting surveillance on Americans for
foreign intelligence purposes. It requires the inspectors general of
the Department of Justice, the Department of Defense, the National
Security Agency, and the Director of National Intelligence to conduct a
comprehensive review and issue a report on the President's surveillance
program. It requires the intelligence community to create reverse
targeting guidelines so that the National Security Agency cannot
conduct surveillance of a U.S. citizen without a warrant by targeting a
foreigner. Finally, it sunsets this legislation in 4\1/2\ half years
rather than the 6 years called for in the original bill. All of these
measures increase oversight and help protect civil liberties and are
helpful changes.
However, title II of this bill still grants retroactive immunity to
telecommunications companies for actions they may or may not have taken
in response to administration requests that may or may not have been
legal. As I have stated before, the administration has had years to
provide the written legal justification that they gave the
telecommunications companies when they requested their cooperation in
the aftermath of September 11. A few of my colleagues on the Judiciary
Committee and Intelligence Committee were allowed to read certain
documents related to this matter after extensive negotiations with the
administration. However, I, and the rest of my Senate colleagues who
are not on those committees, were denied access to those documents. In
addition, the telecommunications companies who have been named in
several lawsuits have been prohibited by the administration from
providing any information regarding this issue to the courts, to the
plaintiffs, to Members of Congress, or to the public. In good
conscience, I could not simply trust with blind faith that the
administration and telecommunications companies took proper, lawful
actions.
I therefore supported three attempts to strip or limit this immunity
during today's debate. First, Senator Dodd offered an amendment to
strike title II. When that failed, Senator Specter offered an amendment
to require a Federal district court to assess the constitutionality of
the terrorist surveillance program before granting retroactive immunity
to the companies alleged to have assisted the program. This amendment
also failed. As a final effort, Senator Bingaman offered an amendment
which would have stayed all pending cases against the telecommunication
companies related to the Government's warrantless surveillance program
and delayed the effective date of the immunity provisions until 90 days
after Congress receives the required comprehensive report of the
inspectors general regarding the program. If Congress took no action in
that time, the telecommunications companies would receive immunity.
Unfortunately, that amendment also failed.
The Senate had three opportunities to implement sensible measures to
ensure that the grant of immunity to the telecommunication companies
was appropriate. But these amendments were voted down. I believe the
result sets a dangerous precedent. We must take the steps necessary to
thwart terrorist attacks against our country, but these steps must also
ensure that the civil liberties and privacy rights that are core to our
democracy are protected. This bill fails to meet this threshold. For
these reasons, I oppose the passage of this bill.
The ACTING PRESIDENT pro tempore. There is now 2 minutes of debate
equally divided.
Who yields time?
Mr. ROCKEFELLER. Mr. President, we have been on this bill now for in
effect a year.
The ACTING PRESIDENT pro tempore. The Senator will suspend. Will
Senators please take their seats.
Mr. ROCKEFELLER. And we have improved enormously the Senate bill that
we voted out last year with a veto-proof majority. The House had not
reacted to this bill well, particularly the immunity part, as well as
the title I part. We went at them aggressively, Vice Chairman Bond and
myself, to try to get the Senate to move toward the House position. We
were successful in that.
As I have said, Speaker Pelosi, who didn't want anything to do with
the bill at the beginning, actually went to the floor of the House
before they voted on it to pass it out and said: This may not be a
perfect bill, but it is a bill that I certainly am going to vote for,
and that is why I am here asking you to join me in so doing.
I, in my lesser role, am doing the same thing.
This is a historic bill. It has the particular virtue that over the
course of the next 4 years, the next President of the United States
will have a chance to review the bill and see if any changes need to be
made.
I strongly hope, on what I consider to be a very major piece of
national security and civil liberties legislation, that my colleagues
will vote to support the bill.
The ACTING PRESIDENT pro tempore. Does anyone seek time in
opposition?
Mr. BOND. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
is a sufficient second.
The bill having been read the third time, the question is, Shall the
bill pass?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Massachusetts (Mr.
Kennedy) is necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Arizona (Mr. McCain) and the Senator from Alabama (Mr. Sessions).
[[Page S6476]]
Further, if present and voting, the Senator from Alabama (Mr.
Sessions) would have voted ``yea.''
The PRESIDING OFFICER (Mrs. McCaskill). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 69, nays 28, as follows:
[Rollcall Vote No. 168 Leg.]
YEAS--69
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Obama
Pryor
Roberts
Rockefeller
Salazar
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--28
Akaka
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Clinton
Dodd
Dorgan
Durbin
Feingold
Harkin
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--3
Kennedy
McCain
Sessions
The bill (H.R. 6304) was passed.
Mr. REID. Madam President, I move to reconsider the vote and to lay
that motion on the table.
The motion to lay on the table was agreed to.
____________________